Univ.of  UL  Library 


34^ 


PETITION 

OF  THE 

Troy  and  Greenfield  Railroad  Company 


TO  THE 


Oak  Street 
UNCLASSIFIED 


PHILADELPHIA : 

ALLEN,  LANE  & SCOTT'S  PRINTING  HOUSE, 
Nos.  229-231  South  Fifth  Street. 

1881. 


LEGISLATURE  OF  MASSACHUSETTS, 

That  jurisdiction  may  be  conferred  upon  the 
Supreme  Judicial  Court  to  hear  and  deter- 
mine the  right  of  the  Company  to  make  the 
redemption  reserved  in  its  mortgages  to 
the  Commonwealth  and  by-the  act  of  1862. 


ARGUMENTS 

OF 

D.  W.  GOOCH,  J.  H.  CHOATE,  JOHN  C.  BULLITT,  FOB 
THE  COMPANY,  AND  GEORGE  MARSTON,  ATTORNEY- 
GENERAL,  FOR  THE  COMMONWEALTH. 


The  act  of  the  Legislature  of  1862 , Chap.  156, 
authorizing  the  Company  to  surrender  its  prop- 
erty to  the  Commonwealth  for  completion,  and 
fixing  the  time  within  which  the  Company  may 
redeem  the  same,  and  the  amount  to  be  paid  for 
such  redemption. 


TO  THE  HONORABLE  THE  SENATE  AND 
HOUSE  OF  REPRESENTATIVES  OF  THE 
COMMONWEALTH  OF  MASSACHUSETTS. 

The  petition  of  the  Troy  and  Greenfield  Railroad  Com- 
pany respectfully  represents : — 

I.  That  under  and  in  pursuance  of  the  provisions  of 
the  act  of  April  5th,  1854,  the  Troy  and  Greenfield  Rail- 
road Company  executed  and  delivered  a mortgage  to  the 
Commonwealth  of  Massachusetts,  under  date  of  January 
28th,  1855;  and  that  under  and  in  pursuance  of  subse- 
quent legislation,  other  mortgages  upon  all  the  property 
of  the  corporation  were  executed  and  delivered  by  the  cor- 
poration to  the  Commonwealth  on  the  6th  July,  1860, 
and  on  the  5th  April,  1862;  and  that  under  the  conditions 
and  engagements  of  the  act  of  25th  April,  1862,  entitled 
“ An  act  providing  for  the  more  speedy  completion  of  the 
Troy  and  Greenfield  Railroad  and  the  Hoosac  Tunnel,” 
the  said  The  Troy  and  Greenfield  Railroad  surrendered 
possession  of  all  its  property  to  the  Commonwealth  of 
Massachusetts,  and  the  commissioners  appointed  by  au- 
thority of  said  act  took  complete  possession  of  all  the  pro- 
perty, rights,  and  interests  intended  to  be  conveyed  by  said 
mortgages,  and  proceeded  to  complete  the  said  railroad  and 
tunnel,  and,  on  or  about  the  30th  June,  1876,  opened  the 
same  for  use. 

II.  That  by  the  express  language  of  the  second  section 
of  the  said  act,  it  was  declared  that  the  right  of  redemp- 
tion should  not  be  barred  until  after  ten  years  had  elapsed 
after  said  road  and  tunnel  were  completed.  In  Decem- 
ber, 1878,  your  petitioner  applied  to  the  Treasurer  of  the 
Commonwealth  of  Massachusetts  for  an  account  of  the 


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indebtedness  due  to  the  Commonwealth,  under  the  several 
mortgages  mentioned,  and  offered  to  pay  the  amount  that 
should  be  found  due.  The  Treasurer  replied  that  he  did 
not  feel  authorized  by  law  to  state  an  account  and  fix  the 
amount  to  be  paid,  in  redemption  of  the  mortgages  held 
by  the  Commonwealth ; and  thereupon  a bill  in  equity 
was  filed  by  your  petitioner  in  the  Supreme  Judicial 
Court,  in  the  county  of  Suffolk,  praying  for  an  accounting 
and  tendering  the  repayment  of  the  amount  that  should 
be  found  to  be  due.  To  this  bill  a demurrer  was  filed  by 
the  Attorney-General  on  behalf  of  the  Commonwealth, 
and,  upon  argument,  the  said  court  dismissed  the  said  bill 
for  want  of  jurisdiction. 

III.  That  in  the  year  1804,  the  Legislature  of  Massa- 
chusetts had  passed  an  act  providing  that  whenever  any 
mortgagor  who  had  mortgaged  any  real  estate  to  the 
Commonwealth  should  desire  to  redeem  the  same,  and 
there  should  be  a disagreement  between  the  Treasurer  and 
himself  as  to  the  sum  equitably  due  upon  said  mortgage, 
he  should  be  at  liberty  to  file  a bill  in  equity  for  the  re- 
demption thereof  in  the  Supreme  Judicial  Court,  in  the 
county  of  Suffolk;  and  it  was  believed  by  all  persons 
interested  in  the  Troy  and  Greenfield  Railroad  Company, 
at  the  time  of  the  passage  of  the  act  of  28th  April,  1862, 
and  of  the  surrender  to  the  State  of  the  property  of  the 
said  company,  that  the  right  of  redemption  secured  by  the 
second  section  of  said  act  meant  a right  of  redemption, 
which  could  be  enforced,  in  a court  of  justice,  under  the 
authority  of  that  statute,  as  a legal  right;  but,  by  the 
decision  of  the  said  court,  it  is  now  established  that  your 
petitioner  is  without  remedy  at  law. 

IV.  That  by  the  correspondence  with  the  said  Treas- 
urer of  the  Commonwealth,  it  will  be  seen  that  there 
was  a disagreement  as  to  the  principles  upon  which  the 


3 


accounting  between  the  Commonwealth  and  your  peti- 
tioner should  be  settled. 

These  questions  are  purely  legal  questions,  which  can 
only  be  properly  determined  by  a court  of  justice,  and 
with  which  the  Legislature  of  Massachusetts  has  no  con- 
stitutional right  to  deal.  By  its  legislation  for  nearly  a 
century  the  Commonwealth  of  Massachusetts  has  recog- 
nized that  it  was  its  duty  to  submit  questions  of  this  char- 
acter to  the  decision  of  the  courts,  and  every  civilized 
government  now  acknowledges  the  duty  of  furnishing  a 
remedy,  by  process  of  law,  to  its  subjects  or  citizens,  in 
such  cases. 

It  was  by  the  explicit  stipulation  that  your  petitioner 
should  have  a right  of  redemption,  that  the  Commonwealth 
of  Massachusetts  obtained  possession  of  this  property. 
The  true  title  still  belongs  to  the  Troy  and  Greenfield 
Railroad  Company.  The  uominal  title,  held  by  the  Com- 
monwealth, is  held  simply  in  pledge,  to  secure  the  amount 
due.  There  is  a difference  of  opinion  as  to  what  that 
amount  actually  is,  and  no  method  has  been  provided  for 
settling  that  difference.  The  executive  officers  of  the  Com- 
monwealth disclaim  having  authority  to  act,  and  the  court 
has  decided  that  it  has  no  jurisdiction  over  the  controversy. 
Unless,  therefore,  your  Honorable  Bodies  grant  relief, 
your  petitioner  will  be  remediless.  If  the  amount  were 
once  ascertained,  and  the  Commonwealth  should  then  re- 
fuse to  surrender  possession  after  tender  of  the  amount 
agreed  to  be  due,  such  retention  of  possession  would  be  a 
simple  act  of  confiscation;  and  it  is  respectfully  submitted, 
that  unless  your  Honorable  Bodies  will  now  provide  a 
means  whereby,  according  to  due  course  of  law,  that 
amount  can  be  ascertained,  the  result  to  your  petitioner 
and  the  character  of  the  transaction  will  be  practically  the 
same  as  if  there  were  no  dispute  as  to  the  indebtedness, 
but  a simple  exercise  of  sovereign  power,  regardless  of 
right,  in  reliance  upon  immunity  from  legal  liability. 


4 


But  it  can  not  be  supposed  or  assumed  that  the  Com- 
monwealth of  Massachusetts  will  appropriate  to  itself  or 
retain  possession  of  property  which  does  not  belong  to  it, 
or  that  it  will  refuse  to  furnish  through  its  courts  the 
remedy  for  redemption  which  the  contracting  parties,  viz., 
The  Commonwealth  of  Massachusetts  and  the  Troy  and 
Greenfield  Railroad  Company,  both  understood  that  said 
company  had  at  the  time  the  mortgages  above  referred  to 
were  made  and  possession  under  act  of  1862  given. 

Your  petitioner  therefore  prays  that  jurisdiction  may 
be  conferred,  by  law,  upon  the  Supreme  Judicial  Court, 
to  hear  and  determine  the  rights  of  your  petitioner  in 
equity  to  make  the  redemption  reserved  to  your  petitioner 
under  said  mortgage  and  by  the  act  of  1862,  by  proper 
proceedings  in  equity  before  said  court. 

And  your  petitioner  will  ever  pray. 


ARGUMENT  OF  D.  W.  GOOCH. 


Mr . Chairman , and  Gentlemen  of  the  Committee: 

As  stated  in  the  petition  which  I have  just  read,  the  Troy 
and  Greenfield  Railroad  Company  was  incorporated  by  an 
act  of  the  Legislature  of  the  Commonwealth  of  Massachusetts, 
May  10th,  1848.  An  act  authorizing  a loan  of  the  State 
credit  to  the  amount  of  $2,000,000  to  the  company  to  enable 
it  to  construct  the  Hoosac  Tunnel,  secured  by  a mortgage 
of  the  entire  railroad,  franchise,  and  all  other  property  of 
said  company,  was  passed  April  5th,  1854;  and  on  July 
28th,  1855,  the  company  made,  executed,  and  delivered  to  the 
Commonwealth,  a mortgage  in  strict  compliance  with  the 
terms  of  said  act.  In  1860  the  Legislature,  finding  the  exist- 
ing loan  acts  imperfect,  because  the  expenditure  of  the  whole 
two  million  dollars  was  confined  to  the  Hoosac  Tunnel,  and 
also  because  the  work  to  be  done  by  the  company  in  the 
construction  of  its  road  and  tunnel  was  not  sufficiently  de- 
fined, and  in  many  other  respects,  passed  an  act  of  nine 
sections,  proposing  a new  contract.  By  the  terms  of  this 
contract,  the  company  was  to  make  and  file  in  the  proper 
offices  the  location  of  its  entire  road  and  tunnel,  and  the 
grade,  curvature,  width  of  road-bed,  and  size  of  tunnel 
were  definitely  defined.  A State  engineer  was  to  be  ap- 
pointed by  the  Governor  and  Council,  who  was  to  determine 
the  progress  that  had  been  made  in  the  work  on  the  tunnel  to 
February  24th,  1860,  the  amount  of  work  done  and  materials 
furnished  on  the  road,  east  of  the  tunnel,  to  December  22d, 
1859,  and  fix  the  data  from  which  to  determine  the  value  of 
any  work  done  or  materials  furnished  subsequently.  He  was 
also  to  estimate,  monthly,  the  amount  of  work  done  upon  the 
road  and  tunnel,  and  certify  the  same  to  the  Governor,  with 
the  amount  of  State  scrip  to  which  the  company  would  be 
entitled  under  the  provisions  of  this  act.  No  further  scrip 
was  to  be  issued  to  the  company  under  conditions  authorized 
by  former  acts,  but  the  undelivered  portion  of  the  two  million 
dollars,  to  wit,  $1,770,000,  was  to  be  divided  and  apportioned 

(5) 


6 


between  the  railroad  and  tunnel  as  follows,  viz.,  $650,000 
for  the  completion  of  the  unfinished  portion  of  the  road,  east 
of  the  end  of  the  Hoosac  Tunnel,  and  $1,120,000  for  the  com- 
pletion of  the  tunnel,  and  delivered  to  the  company  upon  the 
conditions  provided  in  the  act.  The  Legislature  was  to  elect 
two  directors  of  the  company,  and  the  company  was  author- 
ized and  required  to  purchase  the  Southern  Vermont  Railroad, 
a road  in  the  State  of  Vermont  about  six  miles  in  length, 
extending  from  the  terminus  of  the  Troy  and  Greenfield  Rail- 
road on  the  line  of  Massachusetts  to  the  terminus  of  the  Troy 
and  Boston  Railroad  on  the  line  of  New  York,  and  to  enable 
it  to  do  so,  and  to  transfer  the  same  to  the  Commonwealth,  as 
additional  security,  a further  loan  of  scrip  to  the  amount  of 
$200,000  was  to  be  issued  by  the  Commonwealth.  The 
company  was  to  accept  the  provisions  of  this  act  and  to  give 
the  Commonwealth  a new  mortgage,  both  of  which  acts  were 
lduy  performed  by  the  company  at  a special  meeting  of  stock- 
holders, called  for  that  purpose. 

This  action  by  the  Commonwealth  and  the  company,  recog- 
nizing the  action  taken  by  the  company  up  to  that  time,  and 
providing  that  the  security  of  the  Commonwealth  should  not 
be  impaired,  constituted  a new  contract  to  the  fulfilment  of 
which  each  party  was  bound.  Colonel  Ezra  Lincoln,  of  Boston, 
was  appointed  State  engineer.  He  approved  the  location  of 
the  road  made  by  the  company,  and  fixed  the  data  for  the 
determination  of  the  value  of  materials  and  work,  as  required 
by  the  act  of  1860  above  referred  to,  and  submitted  to  the 
Governor  the  monthly  estimates,  as  required  by  the  late  acts. 
In  the  fall  of  the  same  year  he  resigned  the  office  of  State 
engineer,  in  consequence  of  illness,  and  C.  L.  Stevenson,  Esq., 
who  had  been  his  associate,  was  appointed  to  the  same.  The 
work  on  the  tunnel  and  road  was  advanced  rapidly  till  the 
summer  of  1861 ; just  prior  to  this  time  Mr.  Stevenson  had 
been  removed  by  the  Governor,  and  Mr.  William  S.  Whitwell 
appointed  in  his  place.  Mr.  Whitwell  immediately  changed 
the  data  fixed  by  Colonel  Lincoln,  approved  by  Mr.  Stevenson, 
under  which  all  contracts  had  been  made,  and  the  work  prose- 
cuted since  1860,  and  the  Governor  refused  to  issue  the  scrip  to 
which  the  contractors  were  entitled  for  work  already  done  and 


7 


materials  furnished  under  data  fixed  as  aforesaid,  and  thus  pre- 
vented the  contractors  from  receiving  about  $100,000  for  ma- 
terials furnished  and  work  already  done.  These  acts  of  the  State 
engineer  and  the  Governor  compelled  a suspension  of  the  work 
by  the  contractors.  The  company  immediately,  to  wit,  on  the 
22d  of  July,  1861,  made  an  appeal  to  the  Governor  and  Coun- 
cil, remonstrating  against  this  action  of  the  State  engineer  and 
the  withholding  of  the  scrip  to  which  it  was  entitled.  This 
memorial  was  referred  to  a committee  of  three  members  of  the 
Council,  who  reported  at  length  under  date  of  August  21st, 
1861.  The  report  finds  that  the  difference  between  the  esti- 
mates for  the  work  done  in  the  months  of  May  and  June,  on 
the  basis  and  prices  established  by  Colonel  Lincoln,  and  the 
amount  awarded  by  Mr.  Whitwell,  viz.,  $97,000,  was  justly 
due  the  company  from  the  Commonwealth,  and  fully  exoner- 
ates the  company  and  its  contractors,  and  places  the  whole 
blame  and  responsibility  for  the  suspension  of  the  work  on  the 
officers  of  the  State.  The  Governor  refused  to  accept  the  re- 
port of  this  committee  of  the  Council,  and  ordered  a hearing 
before  the  full  Council.  This  hearing  was  had,  but  neither 
the  company  nor  its  contractors  were  notified  and  were  not 
present,  or  represented  at  the  hearing.  The  Governor  claimed 
that  the  testimony,  given  at  this  hearing,  sustained  the  posi- 
tion taken  by  him,  but  the  Council  dissented  and  presented 
the  following  protest  to  his  indorsement  of  the  official  action 
of  State  Engineer  Whitwell : — 

Commonwealth  of  Massachusetts, 
Executive  Department,  Council  Chamber, 
Boston,  December  26th,  1861. 

In  the  matter  of  the  Troy  and  Greenfield  Railroad  Com- 
pany, the  undersigned,  members  of  the  Executive  Council, 
dissenting  from  the  opinion  of  his  Excellency  the  Governor, 
given  September  26th,  1861,  and  his  reasons  therefor,  so  far 
as  he  indorses  the  official  policy  of  the  present  State  engineer, 
desire  to  place  on  record  the  ground  for  such  dissent  as  fol- 
lows : — 

It  is  our  opinion  that  the  good  faith  of  the  State  was  law- 
fully pledged  by  the  first  engineer  appointed  under  the  act  of 


8 


1860  to  the  estimates  agreed  to  by  him,  which  became  the 
basis  for  the  sub-contracts  for  the  building  of  the  road,  and 
that  no  succeeding  engineer  could  rightfully  “ impose  new 
requirements  ” or  change  this  basis  in  reference  to  work  done 
and  materials  furnished  previous  to  his  appointment,  nor 
afterwards  until  authorized  so  to  do  by  the  Governor  and 
Council,  who  alone  are  empowered  by  law  “ to  correct  abuses, 
remedy  defects,  and  enforce  requirements,  by  withholding 
scrip  or  imposing  new  requirements  as  the  interests  of  the 
Commonwealth  shall  in  their  judgment  require.” 

This  seems  to  us  to  be  an  interpretation  of  the  law  which 
best  accords  with  the  spirit  of  the  statute  without  infringing 
upon  its  letter,  and  the  one  best  adapted  to  serve  the  interests 
of  the  State. 

(Signed)  Hugh  W.  Green. 

E.  C.  Sherman. 

Joel  Hayden. 

John  I.  Baker. 

James  Bitchie. 

James  M.  Shute. 

Oakes  Ames. 

This  protest  the  Governor  refused  to  receive,  or  to  permit 
the  same  to  be  made  a part  of  the  record,  and  consequently 
no  further  action  was  taken  by  the  Governor  and  Council,  and 
the  work  remained  suspended. 

When  the  Legislature  of  1862  assembled,  so  much  of  the 
Governor’s  message  as  related  to  the  Troy  and  Greenfield 
Railroad,  and  the  various  petitions  and  memorials  relating  to 
the  same,  were  submitted  to  a joint  special  committee,  com- 
posed of  three  members  of  the  Senate  and  seven  of  the  House. 
This  committee,  under  date  of  March  21st,  1862,  made  a 
report  to  the  Legislature  fully  sustaining  the  decision  of  the 
Council  that  the  company  was  not  in  default,  and  that  the  sus- 
pension was  caused  by  the  misapprehension  of  their  duties  by 
officers  of  the  Commonwealth.  The  following  are  extracts 
from  the  report  above  referred  to : — 

“ Before  proceeding  to  the  examination  of  the  grave  ques- 
tions suggested  in  the  Governor’s  address,  your  committee 


9 


were  led  to  inquire  into  the  causes  which  occasioned  the  sus- 
pension of  the  work  upon  both  the  railroad  and  the  tunnel, 
in  July  last,  with  the  view  of  ascertaining  whether  this  sus- 
pension was  a necessary  result  of  the  act  of  1860,  con- 
strued correctly  and  carried  into  effect  in  accordance  with  the 
intentions  of  the  Legislature  passing  it,  or  whether  a misappre- 
hension of  its  spirit  and  misconstruction  of  its  terms,  on  the 
part  of  any  of  the  persons  called  upon  to  administer  its  pro- 
visions, produced  or  compelled  this  result.  After  careful  pon- 
sideration  of  the  evidence  submitted  to  the  committee  of  the 
Council,  and  to  the  Governor  and  Council,  at  the  several  hear- 
ings before  those  bodies,  last  fall,  and  a lengthy  examination 
of  the  representative  of  the  Troy  and  Greenfield  Railroad 
Company,  the  several  persons  who  have  occupied  the  position 
of  State  engineers,  under  the  act  of  1860,  and  such  other 
persons  as  were  supposed  to  be  able  to  throw  some  light  upon 
the  inquiry,  your  committee,  with  a single  exception,  were 
agreed  that  the  main  if  not  the  sole  cause  of  the  suspension 
of  the  work  upon  the  road  from  Greenfield  to  the  tunnel  was 
the  misapprehension  on  the  part  of  the  last  State  engineer  of 
the  duties  incumbent  upon  him  under  the  act  of  1860.  In 
arriving  at  this  conclusion,  the  committee  find  no  occasion 
far  imputing  want  of  good  faith  in  Mr.  Whitwell.  On  the 
contrary,  they  are  unanimously  of  opinion  that  his  course 
was  governed  by  his  belief  that  the  act  of  1860  required  him 
to  ignore  any  and  all  plans  established  by  his  predecessors 
for  the  construction  of  the  road,  if  those  plans,  when  fully 
carried  into  effect,  would  not  result  in  the  construction  of 
such  a road  as,  in  his  judgment,  should  be  built  upon  that 
location. 

“ Your  committee  do  not  deem  it  necessary  to  enter  upon  a 
critical  analysis  of  the  provisions  of  the  act  of  1860,  nor  do 
they  feel  compelled  to  decide  whether  Colonel  Lincoln  or  Mr. 
Whitwell  has  exhibited  the  better  judgment  in  determining 
the  character  of  the  road  which  should  be  constructed  from 
Greenfield  to  the  tunnel.  In  their  opinion,  the  true  construc- 
tion of  the  act  of  1860  required  the  State  engineer  who 
should^be  first  appointed  under  it  to  decide  upon  the  quality 
of  the  road  to  be  constructed,  and  determine  its  peculiar 


10 


characteristics,  and  that  this  decision  was  properly  subject  to 
no  change  except  at  the  instigation  of  the  Governor  and 
Council,  under  the  general  supervision,  power  to  correct 
abuses  and  remedy  defects,  given  them  by  the  act.  It  seems 
to  them  that  any  other  construction  must  lead  to  inevitable 
confusion,  and  forever  prevent  the  successful  accomplishment 
of  the  work,  inasmuch  as  every  change  of  State  engineers 
might  result  in  an  entire  change  of  the  character  of  the  work 
to  be  performed  and  of  the  arrangements  previously  made. 

“ Looking  at  the  question  from  a financial  point  of  view  alone, 
and  regarding  solely  the  pecuniary  interest  of  the  State,  your 
committee  are  unanimously  of  opinion  that  the  work  should 
not  be  abandoned,  if  any  policy  can  be  adopted  which  will 
insure  both  economy  and  success. 

But  there  is  another,  and,  to  the  minds  of  the  committee, 
graver  light  in  which  this  question  should  be  viewed.  Com- 
mencing in  1854,  repeated  legislation  has  settled  the  policy  of 
the  State  respecting  this  enterprise.  Regarding  the  good  faith 
of  the  Commonwealth,  it  can  hardly  be  now  considered  an 
open  question.  To  the  extent  of  a loan  of  $2,000,000,  the 
State  faith  is  pledged  to  the  aid  of  the  work ; and  although 
the  manner  of  its  application  has  been  from  time  to  time 
changed,  as  practical  experience  has  exhibited  the  imperfec- 
tion of  previous  legislation,  the  amount  of  the  aid  in  some 
way  to  be  furnished  has  never  been  changed  from  1854  to  the 
present  time. 

“ Relying  upon  the  good  faith  of  the  State  thus  pledged,  by 
permission  of  the  legislature,  the  towns  upon  the  line  of  the 
road  have  made  subscriptions  to  an  amount  equal  to  three  per 
cent,  of  their  respective  valuations,  and  from  these  subscrip- 
tions there  has  already  been  realized  in  cash  paid  into  the 
treasury  of  the  company,  the  sum  of  $125,100.  Considering 
the  certainty  of  long  delay  in  realizing  anything  from  divi- 
dends, and  consequent  loss  of  interest,  but  relying  upon  the 
same  pledges,  individuals  interested  in  the  work  have  made 
liberal  subscriptions,  upon  which  has  already  been  paid  about 
$200,000 ; and  contractors,  induced  by  the  same  pledge  of 
State  aid,  and  by  the  hope  of  obtaining  personal  reputation 


11 


upon  the  successful  accomplishment  of  a work  so  vast,  and  in 
which  success  they  have  had,  and  still  have  entire  confidence, 
have  expended  in  cash,  and  incurred  liabilities  to  an  amount 
exceeding  $350,000. 

“ Upon  this  view  of  the  question  of  abandonment,  your  com- 
mittee concur  in  the  belief  that  the  State  cannot  now  with- 
hold its  aid  to  this  enterprise,  to  the  extent  at  least  of  the 
$2,000,000  first  proposed  to  be  loaned,  unless,  and  until,  in 
the  further  prosecution  of  the  work,  some  obstacle  shall  be 
encountered  which  shall  render  further  progress  impossible. 
Certainly  not  without  affording  and  paying  full  and  complete 
remuneration  and  compensation  to  all  towns,  individuals,  and 
corporations  suffering  loss  thereby. 

“ The  road  from  Greenfield  to  the  tunnel  is  already  nearly 
completed.  In  loans  from  the  State,  and  payments  and  lia- 
bilities of  contractors,  there  has  been  expended  upon  it,  and 
for  material  for  its  construction,  about  $800,000. 

“ At  the  time  of  the  suspension  of  the  work  upon  it,  the  sums 
required  for  its  completion  varied  from  $100,000  to  $200,000, 
the  variation  depending  upon  the  question  whether  the  work 
should  be  completed  in  accordance  with  the  plans  of  the  first 
or  of  the  last  State  engineer. 

“The  estimates  of  loss  occasioned  by  the  suspension  are 
highly  conjectural,  and  vary  from  $10,000  to  $100,000. 

“ From  the  evidence  submitted  to  them,  the  committee  are  of 
opinion  that  the  road  can  be  completed  to  the  tunnel,  and  put 
in  running  order,  fora  sum  not  much,  if  any,  exceeding  $200,- 
000,  without  considering  the  sums,  if  any,  to  be  paid  as  damages 
to  persons  suffering  loss  from  the  suspension. 

“ The  next  and  final  question  considered  by  your  committee 
was,  how  shall  the  work  be  further  prosecuted  ? — whether  by 
the  State,  as  a State  enterprise  alone,  acting  through  its  own 
agents,  and  wholly  ignoring  the  existence  of  the  corporation, 
or  by  the  corporation  with  aid  from  the  State  under  such 
limitations  and  restrictions  as  shall  insure  economy  in  disburse- 
ment of  money,  and  the  application  of  funds  to  the  construc- 
tion of  a work  which,  when  finished,  shall  be  found  adapted 


12 


to  its  purposes.  If  the  State  was  to  assume  all  existing  lia- 
bilities on  account  of  this  road,  and  to  complete  and  . put  in 
running  order  the  whole  work,  without  regard  to  the  expense, 
and  having  no  reference  to  the  sum  which  it  has  heretofore 
agreed  to  loan  in  aid  of  the  enterprise,  there  would  seem  to 
be  some  degree  of  propriety  in  its  taking  the  work  wholly  into 
its  own  hands ; but  inasmuch  as  no  one  contemplates  aid  from 
the  State  to  an  extent  exceeding  $2,000,000,  made  equivalent 
to  cash  advancements,  and  excluding  losses  of  interest,  and 
other  losses  consequent  upon  errors  of  its  own  agents ; and  as 
no  sufficient  reason  has  been  shown  for  taking  the  work  out 
of  the  hands  of  the  corporation  — indeed  no  reason  save  that 
it  has  expended  all  the  funds  it  has  been  able  to  collect  towards 
the  work,  and  in  its  present  stage  cannot  get  further  sub- 
scriptions to  its  stock  — the  committee  see  no  necessity  of  the 
prosecution  of  the  work  save  through  the  usual  and  regular 
channels,  and  without  such  necessity  they  cannot  recommend 
that  the  State  should  assume  the  place  and  duties  of  the  cor- 
poration.” 

The  concluding  paragraph  of  the  report  is  as  follows : — 

“ The  unanimity*with  which  your  committee  have  arrived  at 
their  conclusions,  after  a long,  patient,  and  careful  investiga- 
tion, impels  them  to  the  belief  that  the  interests  of  the  State 
will  be  best  subserved  by  their  adoption.  They  therefore  re- 
port the  accompanying  bill. 

“ The  first  section  of  this  bill  is  as  follows : — 

“ Section  1.  The  treasurer  of  the  Commonwealth  is  hereby 
authorized  and  instructed  to  pay  into  the  hands  of  the  presi- 
dent of  the  Troy  and  Greenfield  Railroad  Company,  the  sum 
of  $150,000,  which  shall  be  applied  by  him,  in  satisfaction  of 
claims  for  labor,  service,  materials,  supplies,  merchandise,  land 
damages,  and  other  liabilities  incurred  before  July  12th,  1861, 
in  carrying  on  the  work  of  the  Troy  and  Greenfield  Railroad, 
and  to  release  all  attachments  and  discharge  all  liens  on  said 
material ; and  if  the  sum  herein  appropriated  shall  be  more 
than  sufficient  to  discharge  said  claims,  the  surplus  shall, 
within  four  months  from  the  passage  of  this  act,  be  returned 


13 


to  the  treasurer  of  the  Commonwealth : Provided , That  pre- 
vious to  the  furnishing  of  such  funds,  the  said  president  shall 
give  a bond  to  the  Commonwealth  in  a sum  and  with  sure- 
ties satisfactory  to  the  Governor  and  Council,  conditioned  that 
said  funds  shall  be  appropriated  to  the  purposes  specified  in 
this  section/* 

This  action  of  the  Council  of  1861,  and  of  the  Joint  Special 
Committee  of  the  Legislature  of  1862,  is  a part  of  the  record 
of  the  Commonwealth  of  Massachusetts,  and  seems  to  estab- 
lish beyond  all  honest  question  or  controversy  that  the  Troy 
and  Greenfield  Railroad  Company  and  its  contractors  had 
acted  in  good  faith,  had  faithfully  kept  and  performed  their 
part  of  the  contract,  up  to  the  twelfth  day  of  July,  1861,  the 
day  of  the  suspension  of  the  work,  and  that  neither  the  com- 
pany nor  its  contractors  were  legally  or  morally  responsible 
for  the  suspension  of  the  work ; that  the  Commonwealth  was  in 
default,  that  $97,000  were  due  from  the  Commonwealth  and 
should  have  been  paid,  and  that  the  rule  of  construction  con- 
tended for  by  the  Governor,  to  wit,  that  each  new  State 
engineer  could  disregard  and  annul  all  acts  and  decisions 
of  his  predecessors,  even  in  reference  to  work  completed  and 
paid  for,  was  such  as  to  forever  prevent  the  successful  prose- 
cution of  the  work. 

The  Governor  refused  to  recede  from  the  position  he  had 
taken,  and  it  was  understood  that  the  bill  which  the  Joint 
Special  Committee  bad  recommended,  or  any  other  which 
should  give  to  the  company  its  rights,  and  enable  it  to 
prosecute  the  work  according  to  the  terms  of  the  contract, 
would  meet  his  veto,  and  consequently  could  not,  with  the  op- 
position in  the  Legislature  with  which  this  enterprise  had 
always  had  to  contend,  become  a law7 ; and  notwithstanding 
the  Joint  Special  Committee,  after  a most  full  and  thorough 
investigation,  had  reported  that  there  was  no  reason  to  take 
the  work  out  of  the  hands  of  the  corporation,  and  no  necessity 
for  its  prosecution,  save  through  the  usual  and  regular  chan- 
nels, it  was  found  that  “ the  grand  enterprise  of  tunnelling  the 
mountain  ” must  either  be  abandoned,  or  that  all  the  property 
and  rights  of  the  Troy  and  Greenfield  Railroad  Company 


14 


must  be  surrendered  to  the  Commonwealth,  as  mortgagee,  to 
enable  it  to  take  the  prosecution  of  the  work  into  its  own 
hands. 

There  was  no  breach  of  contract,  no  default,  on  the  part  of 
the  company.  The  breach  of  contract,  the  default,  was  on 
the  part  of  the  Commonwealth ; its  officers  had  refused  to  do 
what  the  Commonwealth  had  contracted  to  do.  It  was  not 
even  pretended  that  the  Commonwealth  had  the  right  to  take 
possession  of  the  property  for  any  default  or  breach  of  condi- 
tion on  the  part  of  the  company.  This  being  the  position  of 
the  parties,  another  and  further  contract  was  proposed  on  the 
part  of  the  Commonwealth,  in  which,  by  its  very  terms,  the 
acknowledgment  is  made  that  the  Commonwealth  is  in  default. 
I refer  to  the  act  of  April  28th,  1862,  entitled  “ An  act  for 
the  more  speedy  completion  of  the  Troy  and  Greenfield  Rail- 
road and  the  Hoosac  Tunnel.”  When  this  new  contract  was 
proposed,  providing  for  the  surrender  of  its  property  into  the 
hands  of  the  Commonwealth,  for  the  prosecution  of  the  work, 
the  company  fully  understood  that  it  was  dealing  with  a sover- 
eignty, and  was  not  willing  to  rely  exclusively  on  the  prin- 
ciples of  law  and  equity  applicable  to  the  redemption  of  mort- 
gaged estates.  The  company  foresaw  that  the  Commonwealth 
might  desire  and  claim  to  hold  the  whole  property  beyond  the 
time  fixed  by  law,  within  which  the  company  might  redeem. 
To  meet  this  objection  the  second  section  of  the  act,  which  also 
recognizes  the  fact  that  the  Commonwealth  has  no  right  to 
claim  the  surrender,  provides  as  follows : — “ The  Troy  and 
Greenfield  Railroad  Company  is  hereby  authorized  to  sur- 
render to  the  State  the  property  now  mortgaged ; but  the  right 
of  redemption  shall  not  be  barred  until  ten  years  shall  have 
elapsed  after  said  road  and  tunnel  are  completed  and  the  same 
open  for  use.” 

The  company  also  foresaw  that  the  Commonwealth  might 
expend  a sum  of  money  far  greater  than  the  company  would 
expend  in  the  completion  of  the  road  and  tunnel  which 
it  was  building,  and,  while  by  the  established  rules  of  law  and 
equity,  it  could  not  claim  an  amount  greater  than  that  speci- 
fied in  the  mortgage,  and  absolutely  necessary  for  the  comple- 
tion of  the  exact  and  well-defined  and  limited  road  and 


15 


tunnel  which  the  company  was  constructing,  it  feared  then, 
it  knows  now,  that  there  would  be  men  who  would  claim,  on 
behalf  of  the  Commonwealth,  what  honorable  men  would 
blush  to  claim  for  themselves,  namely,  that  any  amount  of 
money  which  the  Commonwealth  might  expend  for  its  own 
purposes,  and  to  make  this  road  and  tunnel  a grand  public 
work  to  which  the  Commonwealth  could  invite  the  attention 
of  the  world  with  pride  and  satisfaction,  should  be  repaid  by 
the  company  as  a condition  of  redemption.  The  Common- 
wealth disclaimed  any  such  intent,  purpose,  or  wish,  and  to 
satisfy  the  company,  inserted  in  the  contract  itself  the  pro- 
vision that  it  would  claim  only  the  $2,000,000,  as  specified  in 
the  mortgage.  The  language  is  as  follows : — 

“ Provided , That  all  expenditures  and  advances  made 
under  and  by  virtue  of  this  act,  shall  be  on  account  and 
form  part  of  the  $2,000,000  authorized  to  be  loaned  in  State 
scrip  to  the  Troy  and  Greenfield  Railroad  Company,  by  chap- 
ter 226  of  the  Acts  of  1854 ; and  said  expenditures  and  ad- 
vances, together  with  all  sums  hitherto  advanced  to  said 
company,  excepting  the  sums  advanced  on  account  of  the 
‘Southern  Vermont  Railroad,’  shall  not  exceed  in  amount 
the  said  $2,000,000.” 

This  provision  was  inserted  in  the  bill  after  it  had  passed 
the  Senate  and  when  it  was  under  consideration  in  the  House. 
Its  phraseology  is  remarkable ; the  bill  was  to  constitute  a 
part  of  a contract,  which  the  State  was  about  to  make  with 
the  Troy  and  Greenfield  Railroad  Company,  and  would  be  a 
nullity  unless  the  company  was  willing  to  agree  to  its  terms  and 
surrender  its  property.  This  the  company  would  not  do  with- 
out an  express  limitation  of  the  amount  the  repayment  of 
which  the  Commonwealth  might  claim  as  a condition  of  re- 
demption ; therefore  this  proviso  was  inserted,  and  the  phra- 
seology ,is  full,  perfect,  and  exact  for  the  purpose  intended. 
While  it  carefully  protects  the  company,  and  limits  the  ex- 
penditures which  can  be  made  and  charged  to  it,  it  places  no 
limitation  or  restriction  on  the  amount  which  the  Common- 
wealth may  expend  for  the  completion  of  the  work.  The  act 
from  its  title  to  its  end  shows  that  the  Commonwealth  took 


16 


this  railroad  and  tunnel  into  its  hands  to  complete  and  open 
the  same  for  use. 

At  this  time  $1,174,600  of  the  $2,000,000  agreed  to  be 
loaned  by  the  Commonwealth  to  the  company  remained  in 
the  possession  of  the  Commonwealth  and  unexpended.  There 
was  probably  not  a man,  either  in  the  Senate  or  the  House,  who 
had  so  little  knowledge  in  relation  to  this  subject  that  he  did 
not  then  know  that  the  railroad  and  tunnel,  such  as  the  State 
would  probably  build,  could  not  be  completed  and  opened  for 
use  by  the  State  for  the  sum  of  $1,174,600;  therefore,  to 
claim  that  this  provision  was  inserted  for  any  other  purpose 
than  that  above  stated  is  to  claim  that  the  Legislature  stulti- 
fied itself;  that  it  provided  that  this  railroad  and  tunnel 
should  be  completed  and  opened  for  use  for  a sum  of  money 
which  every  one  of  its  members  knew  was  wholly  insufficient 
to  accomplish  that  purpose.  The  Legislature  of  Massachusetts, 
as  long  ago  as  1862,  knew  that  even  sovereignty  by  its  fiat 
alone  could  not  build  railroads  and  tunnel  mountains.  More 
fit  and  apt  words  to  accomplish  the  real  object  which  the 
Legislature  had  in  view,  to  wit,  to  limit  the  amount  of 
expenditure  on  the  road  and  tunnel  to  be  charged  to  the  com- 
pany, and  at  the  same  time  impose  no  limit  or  restriction  on 
the  amount  the  Commonwealth  might  expend,  could  not  have 
been  used.  The  first  section  of  this  act  shows  that  the  Legis- 
lature did  not  pretend  to  know  what  it  would  cost  to  com- 
plete the  road  and  tunnel,  and  therefore  the  Governor  and 
Council  were  directed  to  appoint  a commission  to  ascertain, 
among  other  things,  what  the  cost  would  be.  This  commis- 
sion, on  the  28th  day  of  April,  1863,  only  ten  months  after 
the  passage  of  the  act,  reported  their  estimated  cost  with  in- 
terest for  the  completion  of  the  tunnel  and  road  and  its  equip- 
ment to  be  $5,719,330;  or,  if  we  deduct  cost  of  rolling  stock 
and  interest  during  construction,  $4,922,236.  It  will  thus  be 
seen  that  almost  before  a dollar  had  been  expended  by  the 
Commonwealth,  in  the  prosecution  of  the  work,  after  the  sur- 
render, the  Commonwealth  was  notified,  as  its  records  show, 
by  the  engineers  it  had  selected  for  the  purpose,  that  it  would 
cost  the  State  a sum  of  money  far  in  excess  of  the  sum  men- 
tioned in  this  proviso  to  complete  the  work ; and  its  records 


17 


also  show  that  it  was  advised  by  the  learned  counsel,  Hon. 
Emory  Washburn,  whose  opinion  it  asked,  that  the  amount 
which  it  could  claim  from  the  company  as  a condition  for  re- 
demption was  definitely  fixed  and  limited  by  the  proviso  above 
quoted.  The  Commonwealth  has  not  even  the  poor  pretext 
for  the  non-fulfilment  of  this  contract,  according  to  its  terms, 
that  it  was  mistaken  either  in  the  law  or  the  fact. 

The  Commonwealth  knew  then,  as  every  individual  knows 
now,  that  this  railroad  and  tunnel,  when  completed  and  opened 
for  use,  would  not  be  worth  more  to  the  company  than  the 
million  of  dollars  which  the  company  had  invested  of  its  own 
funds  and  the  two  millions  of  dollars  to  be  furnished  by  the 
Commonwealth,  namely,  three  millions  of  dollars,  with  such 
interest  as  should  accrue  thereon;  and  consequently  were 
willing  to  stipulate  that  the  company  should  have  the  right 
to  redeem  on  the  payment  called  for  by  the  terms  of  the 
mortgage ; and  that  it  would  be  only  just  and  right  that  any 
excess  of  expenditure,  no  matter  how  great,  should  be  borne 
by  the  Commonwealth  ; the  great  benefit  resulting  to  the 
Commonwealth,  as  a whole,  from  the  opening  of  another  com- 
munication with  the  great  West,  believed  then,  and  known 
now,  to  be  absolutely  necessary  for  the  maintenance  and  de- 
velopment of  the  interests  of  Massachusetts,  to  be  the  com- 
pensation for  such  excess. 

The  Commonwealth  then  recognized  the  fact,  that,  by  the 
rules  of  law  and  equity,  it  must  build  the  road  and  tunnel 
which  the  company  was  building,  at  the  time  of  the  surrender, 
which  had  been  specifically  and  exactly  described  and  defined 
by  the  Commonwealth  in  its  act  of  1860  ; which  act,  by  its 
acceptance  by  the  company,  became  a part  of  the  contract, 
and  foreseeing  that  it  might  wish  to  make  some  change  in  the 
grade  or  location  of  the  road,  and  that  any  such  change,  un- 
authorized by  the  company,  might  defeat  its  mortgage,  pro- 
vided in  the  act  for  such  changes  of  grade  and  location,  by 
the  insertion  of  the  following  clause,  viz. : “ Such  changes 
may  be  made  in  the  location  and  grades  of  the  road  as  may 
be  necessary  to  improve  the  same.” 

With  this  right  conceded  by  the  company,  the  Common- 
wealth assumed,  and  perhaps  correctly,  that  it  could  build 


18 


such  railroad  and  tunnel,  not  inferior  in  any  respect  to  the 
railroad  and  tunnel  provided  for  in  the  contract,  as  it  might 
choose,  limited  in  its  expenditure  only  by  its  own  sovereign 
will,  and  wholly  without  regard  to  the  value  of  the  work,  for 
railroad  purposes,  when  completed ; the  essential  condition 
being  that  the  road  and  tunnel  must  be  of  such  a character 
that  the  company  could  not  object,  as  a condition  for  redemp- 
tion, to  the  payment  of  the  sum  specified  in  the  mortgage,, 
thaf  either  the  road  or  tunnel  was  inferior  to  the  road  and  tun- 
nel provided  for  by  the  act  of  1860.  The  finished  excava- 
tion of  the  tunnel  must  be  fourteen  feet  wide  and  eighteen 
feet  high  in  the  middle,  and  of  course  might  be  as  much 
larger  as  the  Commonwealth  should  see  fit  to  make  it.  The 
road-bed  must  be,  at  grade  fifteen  feet,  on  embankments  sev- 
enteen and  a half  feet  in  side  cuts  and  twenty  feet  in 
through  cuts,  and  might  exceed  th^ese  limits  to  any  extent 
which  the  Commonwealth  should  please.  The  increased  size 
of  the  tunnel  and  width  of  road-bed,  while  wholly  unneces- 
sary for  the  road  which  the  company  was  building,  would 
not  decrease  the  value  of  the  same,  and,  as  the  sum  which  the 
company  was  to  pay  for  redemption  had  been  expressly 
agreed  upon,  could  not,  on  account  of  the  increase  of  size  and 
expenditure,  be  objected  to  on  the  part  of  the  company. 

Had  the  company  or  any  one  of  its  officers  or  agents  then 
suggested  that,  when  the  company  should  propose  to  redeem, 
within  ten  years  after  the  road  and  tunnel  should  be  comple- 
ted and  opened  for  use,  on  the  payment  of  the  sum  called  for 
by  the  terms  of  the  contract,  by  proper  process  in  the  court 
understood  by  both  parties  at  the  time  the  contract  was  made 
to  have  jurisdiction  of  the  matter,  the  Commonwealth  would 
appear,  by  its  highest  law  officer,  and  plead  in  bar  that  it  was 
a sovereign,  and  therefore  should  be  protected  from  such  per- 
formance of  its  contracts  as  its  own  highest  court  might  decree, 
and  that,  when  that  court  should  find  that  the  Legislature  had 
not  specifically  given  it  jurisdiction  in  equity  of  questions 
arising  out  of  railroad  mortgages,  made  to  and  held  by  the 
Commonwealth,  the  same  having  been  understood  by  the  Legis- 
lature to  have  been  already  conferred,  and  consequently  should 
refuse  to  take  jurisdiction  of  the  case,  and  the  company 


19 


should  then  appeal  to  the  Legislature  to  confer  on  the  court 
the  jurisdiction  which  both  parties  understood  that  it  had 
when  the  contract  was  made,  that  he  would  then  be  told  that 
the  Commonwealth  would  not  give  the  court  jurisdiction  to 
hear  and  determine  his  rights  according  to  the  contract  exist- 
ing between  the  parties,  and  that  it  would  only  confer  the 
jurisdiction  to  hear  and  determine  what  its  rights  would  be 
under  an  entirely  new  and  different  contract,  the  terms  of 
which  it  should  be  permitted  to  dictate,  as  a condition  for 
granting  the  court  jurisdiction,  such  a suggestion  would  have 
been  spurned  with  indignation,  and  the  party  making  it  would 
have  undoubtedly  been  asked,  What  is  there  in  the  history 
or  character  of  Massachusetts  that  you  dare  thus  to  impeach 
her  honor  ? 

With  its  rights  guarded  and  protected  in  the  manner 
already  stated,  the  company  duly  surrendered  its  property 
to  the  Commonwealth,  and  thus  completed  another  and  the 
last  contract  between  tij^e  parties.  It  surrendered  to  the 
Commonwealth  everything  that  it  possessed  and  was ; all 
its  property,  including  its  franchise,  to  be  held  by  the 
Commonwealth,  till  such  time  as  the  purposes  for  which  the 
surrender  was  made  should  be  accomplished;  and  thus 
relieved  itself,  for  the  time  being,  from  all  its  duties  and 
responsibilities.  No  other  or  further  contract  was  made  be- 
tween the  parties,  and  no  other  or  further  proposal  for  changes 
of  contract  was  ever  made  or  suggested.  The  company  then 
understood,  and  now  understands,  that  no  further  action  on 
its  part,  of  any  name,  nature,  or  description,  was  required  by 
its  contract  or  expected  by  the  Commonwealth,  until  the  work 
which  the  Commonwealth  had  assumed  and  agreed  to  do  was 
completed.  The  manner  in  which  the  Commonwealth  should 
prosecute  the  work,  the  agencies  which  it  should  use,  the  con- 
tracts which  it  should  make,  the  amount  of  money  it  should 
expend,  were  all  matters  over  which  the  company  had  no  con- 
trol, and  with  which  it  had  no  right  to  interfere.  The  cir- 
cumstances under  which  the  property  had  been  surrendered, 
as  well  as  the  terms  of  the  contract  by  which  it  was  surren- 
dered, not  only  relieved  the  company  from  all  obligations,  but 
effectually  barred  it  from  all  voice  and  interference  in  relation 


20 


to  the  prosecution  of  the  work  by  the  Commonwealth ; and 
any  attempt  on  the  part  of  the  company  to  dictate  to  the  Com- 
monwealth how  the  work  should  be  prosecuted,  or  to  protest 
against  any  mode  of  prosecution  of  the  work  which  the  Com- 
monwealth might  propose  to  adopt,  or  any  expenditure  which 
the  Commonwealth  might  propose  to  make,  would  have  been 
regarded  by  the  Commonwealth  as  a wholly  unwarranted  in- 
terference, and  the  party  making  such  protest  would  have  un- 
doubtedly been  told  that  the  rights  of  the  Troy  and  Greenfield 
Railroad  Company  were  duly  protected  by  the  contract,  and 
that  the  Commonwealth  felt  itself  competent  to  determine  the 
manner  in  which  it  would  prosecute  the  work,  and  the  amount 
of  expenditure  it  would  make  on  the  same,  and  that  it  did  not 
need  the  interference  or  protection  of  the  Troy  and  Greenfield 
Railroad  Company  for  either  purpose. 

I know  that  it  is  now  claimed  by  some  that  the  Troy  and 
Greenfield  Railroad  Company  should  somewhere,  at  some  time, 
have  made  a protest  against  the  great  expenditure  of  money 
by  the  Commonwealth.  I have  never  seen  any  man  who  knew 
or  could  determine  when,  how,  at  what  stage  of  the  work,  or 
under  what  circumstances  such  protest  should  have  been  made ; 
and  I shall  feel  under  great  obligation  to  any  one  who  will  in- 
form me,  stating  exactly  the  amount  of  money  that  had  been 
expended  by  the  Commonwealth,  and  the  exact  progress  made 
on  the  work  by  the  Commonwealth,  at  the  precise  time  when 
such  protest  should  have  been  made,  and  also  what  should 
have  been  the  form  of  the  same,  and  on  what  right  or  author- 
ity, on  the  part  of  the  company,  it  should  have  been  based. 
The  very  protest  which  it  is  now  claimed  that  the  Troy  and 
Greenfield  Railroad  Company  should  have  made  against  this 
great  expenditure  of  money  by  the  Commonwealth  was,  as  be- 
fore stated,  made  in  advance,  at  the  time  when  the  surrender 
of  this  property  for  the  purposes  of  completion  by  the  Com- 
monwealth was  asked.  The  Commonwealth  was  then  told 
that,  if  it  took  possession  of  this  property  for  the  purpose  of 
completing  it,  it  would  probably  expend  a sum  of  money 
greatly  in  excess  of  what  the  company  would  expend  therefor  ; 
and  the  surrender  would  never  have  been  made,  had  not  the 
Commonwealth  agreed  that,  while  it  was  at  liberty  to  expend 


12 


what  sum  it  might  please,  no  more  than  the  sum  called  for  by 
the  terms  of  the  contract  should  be  claimed  from  the  company 
as  a condition  of  redemption. 

The  pretence  that  any  such  protest  should  have  been  made 
by  the  company  is  an  after-thought,  and  excusable  only  on  the 
assumption  that  the  party  making  it  is  not  familiar  with  the 
terms  of  the  contract  and  the  records  of  the  Commonwealth 
of  Massachusetts  in  relation  to  this  subject.  To  assume  that 
Massachusetts  will  take  any  such  position,  is  to  assume  that 
she  is  willing  to  admit  that  she  was  so  far  incompetent  to 
prosecute  the  work  which  she  had  undertaken  to  do,  and  ex- 
pend the  proper  sum  of  money  therefor,  that  it  became  the 
duty  of  the  Troy  and  Greenfield  Railroad  Company  to  assume 
the  position  of  guardian  and  protector,  and  to  prevent  her,  by 
protest  or  otherwise,  from  an  improper  expenditure  and  waste 
of  her  resources.  Is  there  an  honest  man  in  the  Common- 
wealth of  Massachusetts  who  will  say  that  the  Common- 
wealth made  this  expenditure  of  $16,000,000  in  excess  of  the 
sum  named  in  the  mortgage,  expecting  to  be  reimbursed  there- 
for, otherwise  than  by  the  benefit  which  would  result  to  the 
whole  State  from  the  opening  of  a new  line  of  communication 
to  the  West,  as  already  stated?  Can  there  be  anything  more 
unreasonable  than  to  claim  now  that  the  company  did  not 
afterwards,  at  some  time  which  no  man  can  determine,  renew 
this  protest ; or  is  there  any  man  who  will  admit  that  the  Com- 
monwealth made  this  expenditure  of  money,  on  property 
which  it  had  obtained  in  the  manner  above  described,  with 
the  intent  or  purpose  of  placing  it  in  such  a position  that  its 
owners,  the  mortgagors,  should  never  be  able  to  redeem  the 
same? 

It  was  well  known  at  the  time  of  the  surrender,  that  the 
million  dollars  furnished  by  the  company,  and  the  two  million 
dollars  furnished  and  to  be  furnished  by  the  Commonwealth, 
with  the  interest  that  would  accrue  thereon,  would  reach  an 
amount  fully  equal  to  and  perhaps  greater  than  the  full  value 
of  this  road  and  tunnel  for  any  legitimate  railroad  purposes, 
when  the  same  should  be  completed  and  opened  for  use ; so 
that  the  limitation  of  the  sum  to  be  paid  by  the  company  for 
redemption  to  $2,000,000,  without  regard  to  the  amount 


22 


which  the  Commonwealth  might  expend,  was  not  only  in  every 
respect  just  and  right  to  the  company,  but  was  based  on  sound 
business  principles.  The  company  did  not  surrender  its  proper- 
ty with  the  expectation  that  the  Commonwealth  would  so  use  the 
power  which  it  gained  by  the  surrender  as  to  make  redemption 
impossible.  The  Commonwealth  did  not  ask  the  surrender  with 
the  intent,  purpose,  or  expectation  of  placing  the  property  in 
such  position  as  to  render  its  redemption  by  the  company  im- 
possible. The  whole  history  of  the  transaction  at  the  time  of 
the  surrender  shows  that  the  Commonwealth  did  not  intend 
to  deprive  the  mortgagor  of  its  property,  and  to  become  the 
owner  and  operator  of  the  railroad.  The  very  title  of  the  act 
of  1862  shows  that  it  only  asked  the  surrender  because  it  be- 
lieved the  Commonwealth  could  complete  the  work  more 
speedily  and  successfully  than  the  company  could,  and  that 
the  expectation  was  that  the  company  would  again  come  into 
possession  of  its  property  and  operate  this  railroad.  The 
ownership  and  operation  of  a railroad  were  contrary  to  the  well- 
established  policy  of  Massachusetts.  To  assume  that  the  Com- 
monwealth had  any  intention  or  expectation  of  making  itself 
owner  of  the  property,  or  any  intention  or  purpose  to  expend 
upon  it  such  sums  of  money,  in  excess  of  the  two  million  dollars, 
and  claim  the  same  from  the  mortgagor,  as  would  render  re- 
demption impossible,  is  to  charge  upon  the  Commonwealth  the 
most  base  and  infamous  fraud.  The  provisions  of  the  act,  which 
protect  in  terms  the  rights  of  the  mortgagors,  forever  repel 
such  assumption,  and  any  man  who  will  carefully  examine  all 
the  facts  in  the  case,  will  find  himself  fully  satisfied  that  if  any 
blot  is  to  be  cast  upon  the  reputation  of  Massachusetts,  in 
connection  with  this  matter,  it  will  not  be  placed  there  in  con- 
sequence of  any  act  she  has  done  or  contract  she  has  made  up 
to  this  time,  but  will  result  from  her  refusal  to  execute,  in 
good  faith  and  according  to  its  terms,  the  contracts  she  has 
made. 

Massachusetts  has  ever  prided  herself  that  she  has  fulfilled 
with  scrupulous  honesty  every  promise  made,  and  that  her 
integrity  is  like  that  of  David’s  perfect  man, — 

“ Who  to  his  plighted  vows  and  trust 
Has  ever  firmly  stood, 

And  though  he  promise  to  his  loss, 

He  makes  his  promise  good.” 


23 


There  is  no  doubt  that  Massachusetts  has  promised  that 
this  railroad  company  shall  have  the  right  to  redeem  on  the 
payment  of  the  amount  called  for  by  the  terms  of  its  mortgage. 
If  she  has  promised  to  her  loss,  will  she,  for  that  reason,  re- 
fuse to  perform  ? If  this  question  shall  be  answered  in  the 
affirmative,  a grave  responsibility  will  rest  upon  the  men,  no 
matter  what  their  official  position  may  be,  who  shall  make  for 
her  that  answer  ; and  any  attempt  at  evasion,  such  as  the  offer 
of  a remedy  for  redemption,  coupled  with  provisions  and  con- 
ditions which  change  the  rights  of  the  parties  under  existing 
contracts,  will  be  a deeper  stain  on  her  honor  than  a direct 
refusal  to  do  what  she  has  agreed  to  do. 

But  Massachusetts  has  not  promised  to  her  loss.  I have 
said  that  the  contract  which  she  made  with  the  company,  by 
the  terms  of  the  act  of  1862,  was  based,  at  the  time  when 
made,  on  sound  business  principles ; subsequent  events  have 
fully  demonstrated  that  the  property  was  not,  at  the  time  of 
its  completion,  and  has  not  been  since,  up  to  the  present  time, 
worth  more,  for  any  legitimate  railroad  purposes,  than  the  sum 
expended  by  the  company  of  its  own  funds  and  the  amount 
agreed  upon  by  the  terms  of  the  mortgage  to  be  furnished  by 
the  Commonwealth. 

It  is  well  understood  that  it  is  no  part  of  the  exercise  of  the 
legitimate  powers  of  a State  to  own  and  operate  a railroad ; 
but,  on  the  other  hand,  it  is  actually  derogatory,  for  the 
reason  that  it  must  waive  its  sovereignty,  for  the  purpose  of 
entering  into  contracts,  and  all  the  other  details  of  business 
incident  to  the  ownership  and  operation  of  a railroad,  and 
place  itself  on  terms  of  equality  with  the  railroad  corpora- 
tions which  it  has  created  and  over  which  it  has  sovereign 
power,  and  also  on  terms  of  equality  with  every  individual,  be 
he  citizen  or  alien,  who  may  transport  merchandise  or  ride  in 
person  over  its  road.  It  is  also  well  understood  that  a rail- 
road company  can  own  and  operate  a railroad  in  such  manner 
as  to  render  to  the  public  the  best  possible  service,  and  at  the 
same  time  receive  a just  and  proper  income  from  the  same ; 
while  the  same  railroad,  owned  and  operated  by  a sovereign 
State,  would  be  a constant  source  of  embarrassment,  contention, 
and  loss : therefore  I say  that  the  pecuniary  interest  not  les3 


24 


than  the  honor  of  Massachusetts  requires  that  she  shall  give  to- 
the  Troy  and  Greenfield  Railroad  Company  the  remedy  which 
it  asks,  and  that  every  good  citizen,  whatever  his  position  may 
he,  should  use  his  influence  to  secure  the  return  of  this  property, 
by  the  Commonwealth,  to  the  company  chartered  to  build  and 
operate  it,  in  strict  compliance  with  the  terms  of  the  contract. 

In  1855  the  company,  to  obtain  additional  funds  for  the 
prosecution  of  this  work,  made  a mortgage  to  Smith  and 
others,  trustees,  to  secure  its  bonds  to  the  amount  of  $900,000, 
which  mortgage  was  made  in  terms  subject  to  the  prior  mort- 
gage to  the  Commonwealth  to  secure  State  bonds  to  the 
amount  of  $2,000,000,  which  were  to  be  issued  under  the  act 
of  1854,  above  referred  to.  Two  other  mortgages  were  subse- 
quently made  to  the  Commonwealth,  to  wit,  one  under  date 
of  July  6th,  1860,  and  the  other  under  date  of  March  5th, 
1862,  both  to  secure  the  same  $2,000,000.  In  1863,  after  the 
company  had  surrendered  its  property  to  the  Commonwealth, 
reserving  the  right  of  redemption,  and  when  only  part  of 
the  $2,000,000  had  been  advanced,  a question  arose  as  to  the 
effect  of  the  Smith  mortgage,  and  whether  or  not  it  in  any 
way  affected  the  right  of  the  Commonwealth  under  said  mort- 
gages. In  1863,  this  question,  with  others,  was  submitted  to  Hon- 
orables  Dwight  Foster,  Emory  Washburn,  and  Isaac  F.  Red- 
field,  for  their  opinions.  Each  of  these  distinguished  law- 
yers, in  his  opinion,  fully  recognized  both  the  right  and  power 
of  the  company  to  redeem  its  property,  and  the  opinion  of 
each  of  them  is  based  on  that  recognition.  Had  they 
found  that  the  company  had  not  that  right,  that  the  title  of 
the  Commonwealth  as  against  the  Troy  and  Greenfield  Rail- 
road Company  and  its  mortgagees  was  indefeasible,  there  would 
have  been  no  occasion  for  any  further  finding  or  opinion,  and 
all  there  is  of  these  opinions  would  have  been  uncalled  for 
and  useless.  They  all  agree  that  the  Commonwealth  had 
the  right  to  expend  the  $2,000,000  as  provided  in  the  mort- 
gage, and  that  it  could  hold  the  property  as  security  for  the 
same ; and  the  Commonwealth  was  then  expressly  told  that 
there  was  a limit  to  the  amount  which  it  could  expend  and  hold 
the  company  responsible  for  the  payment  of  the  same,  as  a con- 


25 


dition  of  redemption.  Mr.  Washburn,  in  his  opinion,  says : 
“ As  against  the  Troy  and  Greenfield  Railroad  Company,  the 
Commonwealth,  as  mortgagee,  may  clearly  hold  the  road,  its 
franchise,  and  other  property  to  this  extent  [$2,000,000]. 
• * * The  Commonwealth  may  hold  the  property  and  com- 

plete the  road,  and  receive  its  income  and  earnings  during  the 
ten  years  mentioned  in  the  act,  unless  sooner  redeemed,  and  their 
mortgages,  for  all  advances  on  account  of  this,  would  be  good  as 
against  the  Troy  and  Greenfield  Railroad  Company.  But  the 
terms  of  the  act  of  1862,  chapter  156,  section  7,  under  which 
this  is  to  be  done,  limits  the  amount  to  which  this  expenditure 
may  be  made  by  the  Commonwealth  to  $2,000,000.  * * * 

It  is  difficult  to  say  that  this  power  to  advance  money  and 
hold  a lien  for  the  same  is  unlimited,  or  if  limited  at  all,  to 
know  where  to  fix  any  limit  other  than  the  original  $2,000,000.” 

It  was  suggested,  in  these  opinions,  that  a case  could  be 
made  up  in  the  form  of  a bill  in  equity  by  the  Commonwealth 
against  the  trustees,  to  test  the  rights  of  the  Commonwealth 
and  the  trustees  of  the  Smith  mortgage  under  their  respec- 
tive mortgages.  This  course  was  adopted  by  the  Common- 
wealth, and  the  case,  as  made  up  and  submitted  by  the  Com- 
monwealth, is  found  in  10  Allen,  448.  In  this  case,  the 
Commonwealth,  in  its  agreed  statement  of  facts,  says  that  the 
company  surrendered  its  property  subject  to  redemption  under 
Statute  1862,  chap.  156.  The  whole  of  the  Commonwealth’s 
right  to  be  heard  by  the  court  in  that  case  is  based  on  the 
fact,  that  the  company  had  a right  to  redeem  its  property  by 
process  of  law,  and  that  the  company  could  have  made,  by 
complying  with  the  terms  of  the  law  in  relation  to  mortgages 
made  by  railroad  companies,  a mortgage  which  might  have 
affected  the  title  of  the  Commonwealth  to  the  property.  The 
court  says : “ The  second  mortgage  to  the  Commonwealth 
gives  it  a direct  interest  in  the  property,  and,  not  being  made 
expressly  subject  to  any  prior  incumbrance,  gives  the  right 
to  maintain  and  prove  that  the  supposed  conveyance  to  the 
defendants  was  illegal  and  void. 

“ The  result  to  which  the  point  decided  leads  is  this  : that 
the  defendants,  having  no  title  which  they  can  maintain 
against  either  of  the  mortgages  to  the  Commonwealth,  the 


26 


plaintiffs  have  a plain,  complete,  and  adequate  remedy  at  law 
for  any  interference  with  the  mortgaged  property,  and  the 
bill  must  be  dismissed.” 

It  will  thus  be  seen  that  the  court  made  the  findings  which 
it  did  in  this  case,  recognizing  that  while  the  Troy  and  Green- 
field Railroad  Company  and  its  mortgagees  had  a full 
and  perfect  right  of  redemption  against  the  Commonwealth, 
Smith  and  others,  trustees,  did  not  have  such  right,  for  the 
reason  that  their  mortgage  was  invalid,  because  it  did  not 
comply  with  the  statute  relating  to  mortgages  made  by  rail- 
road companies,  and  therefore  dismissed  the  bill.  If  it  had 
appeared  to  the  court  that  the  Commonwealth  had  a title  in- 
defeasible as  against  any  process  which  the  company,  or  its 
grantees,  could  institute  against  it,  the  bill  would  have  been 
dismissed  for  that  reason,  and  not  because  the  Smith  mortgage 
was  not  made  in  compliance  with  the  statutes.  Is  it  true  that 
Massachusetts,  when  in  court  for  one  purpose,  will  assert  as 
true  that  which  she  will  deny  when  in  court  for  another  and 
different  purpose,  and  take  advantage  of  both  positions  ? 

In  1876,  when  the  work,  for  which  the  surrender  was  made, 
was  nearly  completed,  the  company,  hoping  to  secure  a speedy 
adjustment  of  all  questions  which  might  arise  between  itself 
and  the  Commonwealth  in  relation  to  this  property,  without 
resort  to  the  court,  presented  a memorial  to  the  Legislature, 
asking  that  impartial  referees  might  be  selected  to  determine 
what  amount  should  be  paid  by  the  company  for  the  redemp- 
tion of  its  property,  and  the  terms  and  conditions  of  such  pay- 
ments. When  the  hearing  was  had  on  this  memorial,  Hon. 
Charles  R.  Train,  then  attorney-general,  appeared  for  the 
Commonwealth,  and  stated  that  no  action  was  called  for  on  its 
part,  for  the  reason  that  the  company  had  a full  and  adequate 
remedy  for  the  redemption  of  its  property  under  the  provisions 
of  chapter  140  of  the  General  Statutes,  and  no  action  was 
taken  by  the  Legislature.  I know  that  it  has  been  recently 
reported  that  Mr.  Train  has  stated  that  he  did  not  take  this 
position  before  the  committee,  but  it  cannot  be  true  that  he 
has  made  any  such  denial,  and  I venture  the  assertion  that  he 
will  not  make  any  such  denial,  for  the  reason  that  the  facts  as 
stated  are  true,  and  can  be  easily  proved  if  denied. 


27 


In  1877  the  Joint  Special  Committee  on  the  Hoosac  Tunnel 
and  Troy  and  Greenfield  Railroad,  after  a most  full  and 
thorough  examination,  made  a report  which  can  be  found  in 
Senate  Document  No.  170  of  that  year.  On  page  12  they  say : 
“ There  is  no  question  but  what  the  Troy  and  Greenfield  Rail- 
road Company  have,  within  ten  years  from  July  1st,  1876, 
the  right  to  redeem  the  tunnel  property,  and  the  only  question 
that  arises  is  as  to  how  much  they  shall  pay  in  order  to  so 
redeem.” 

In  1878  a resolve  for  an  amendment  to  the  Constitution, 
prohibiting  the  alienation  of  the  title  of  the  Commonwealth  to 
the  Troy  and  Greenfield  Railroad  and  Hoosac  Tunnel,  was 
passed  by  the  House  of  Representatives,  and,  at  the  instance 
of  the  company,  was  referred  to  the  Judiciary  Committee  of 
the  Senate.  The  report  of  the  committee  is  found  in  Senate 
Document  No.  222  of  that  year.  After  a full  hearing,  the 
committee  reported  that  the  title  to  the  Commonwealth  was 
simply  that  of  a mortgagee  in  possession  for  the  purpose  of 
foreclosure,  and  that  the  right  of  the  company  to  redeem 
would  not  expire  till  July  1st,  1886 ; that  the  committee  would 
not  express  any  opinion  as  to  the  expediency  of  the  resolve ; 
but,  if  the  same  was  to  be  adopted,  it  should  be  so  amended 
as  to  protect  the  rights  of  the  company.  The  concluding  para- 
graph of  the  committee’s  report  in  explanation  of  the  amend- 
ment it  proposed  is  as  follows : — 

“ The  amendment  is  designed  to  change  the  article  in  two 
particulars, — -first,  to  make  it  more  certain  that  the  prohibi- 
tion against  the  alienation  of  the  title  is  to  apply  to  the  Com- 
monwealth only,  and  is  not  to  adhere  to  the  title  itself  when 
rightfully  in  the  hands  of  any  other  owner  through  redemp- 
tion from  the  mortgage,  as  it  is  feared  might,  in  its  present 
form,  be  claimed ; and,  secondly,  as  the  surrender  to  the  Com- 
monwealth, as  mortgagee,  originally  was  by  deed,  in  order  to 
remove  any  cloud  over  the  title,  it  might  be  found  necessary 
for  the  Commonwealth,  in  case  of  redemption,  to  reconvey  the 
property  by  deed  to  the  holder  of  the  right  in  equity,  and 
should  not  therefore  disable  itself  by  a constitutional  amend- 
ment from  so  doing,  or  leave  the  matter  in  doubt  whether  it 


28 


had  done  so  or  not,  as  might  also  be  claimed  under  the  pres- 
ent form/’ 

The  Senate  adopted  the  amendment,  and  then  refused  to 
pass  the  resolve. 

In  1878,  the  company  applied  to  the  Treasurer  of  the  Com- 
monwealth for  an  account  of  indebtedness  due  the  Common- 
wealth under  its  mortgages.  The  Treasurer  declined  to  fix 
the  amount  to  be  paid  in  redemption,  and  thereupon  the 
company  filed  its  bill  in  equity  in  the  Supreme  Judicial  Court 
for  the  county  of  Suffolk,  praying  for  an  account,  and  tender- 
ing payment  of  the  amount  that  should  be  found  due.  The 
Attorney- General  appeared  in  behalf  of  the  Commonwealth, 
and  pleaded  in  bar  to  the  bill  of  the  company,  that  the  Com- 
monwealth, one  of  the  parties  to  the  contract,  was  a sovereign, 
and  therefore  could  not  be  held  to  answer  in  its  own  court. 
The  court  sustained  the  plea  and  dismissed  the  bill.  We  have 
already  seen  that,  in  1865,  in  the  Smith  case,  the  Common- 
wealth appeared  before  the  Supreme  Judicial  Court  and  put 
on  record,  as  part  of  its  agreed  statement  of  fact,  that  it  was 
in  possession  of  this  property  as  mortgagee,  and  that  the  Troy 
and  Greenfield  Railroad  Company  had  the  right  of  redemp- 
tion for  the  term  of  ten  years  from  the  time  when  the  road 
and  tunnel  should  be  completed  and  opened  for  use.  When 
the  court  decided  that  it  had  not  jurisdiction  to  hear  and  de- 
termine the  case,  thus  virtually  finding  that  the  Commonwealth 
itself,  its  Attorneys-General,  the  distinguished  lawyers 
whose  opinions  it  had  taken,  and  the  court  itself,  misled  by 
the  agreed  statement  of  fact  or  law,  made  in  the  Smith  case, 
above  referred  to,  had  all  been  under  a misapprehension  in 
relation  to  the  jurisdiction  of  the  court,  the  company  supposed 
that  there  could  be  no  doubt  that  the  Legislature,  when  re- 
quested to  do  so,  would  hasten  to  confer  that  jurisdiction,  and 
thus  save  the  Commonwealth  from  a stain  on  its  honor  which 
must  otherwise  become  indelible. 

In  January,  1880,  the  company  presented  to  the  Legislature 
its  petition  in  respectful  terms,  praying  “ that  jurisdiction 
might  be  conferred,  by  law,  upon  the  Supreme  Judicial  Court, 
under  proper  proceedings  in  equity,  to  hear  and  determine  its 
right  to  make  the  redemption  reserved  in  its  mortgage  and 


29 


by  the  act  of  1862.  The  petiion  was  referred  to  the  Judi- 
ciary Committee  of  the  Senate.  The  company  appeared  by  its 
counsel,  and  made  to  the  committee  a full  statement  of  the 
facts  pertaining  to  the  case,  and  the  reasons  for  the  granting 
of  the  prayer  of  the  company.  The  company  asked  that 
such  power,  and  only  such  power,  to  hear  and  determine  the 
case  should  be  given  to  the  court  as  would  place  both  parties 
in  precisely  the  same  position  they  would  have  been  in  if  the 
court  had  the  jurisdiction  which  the  Commonwealth,  all  its 
law  officers  and  even  the  court  itself,  supposed  it  had,  up  to 
the  time  when  the  bill  for  redemption  was  filed,  and  the  ques- 
tion of  jurisdiction  specially  raised  by  the  plea  of  the  Attorney- 
General.  It  simply  said,  Give  us  just  what  we  are  entitled  to 
by  right,  that  which  you  cannot,  without  a breach  of  faith 
withhold.  We  ask  for  no  new  or  additional  rights,  only  for  a 
remedy  which  shall  make  good  to  us  the  rights  we  already 
have. 

The  Attorney-General  appeared  on  behalf  of  the  Com- 
monwealth, and  opposed  the  granting  of  the  jurisdiction  as 
prayed  for,  claiming  that  the  Legislature  should  hold  the 
whole  subject-matter  of  the  relations  of  the  Troy  and  Green- 
field Railroad  Company  and  the  Commonwealth  in  its  own 
control,  and  also  that  the  State  had  a right,  in  case  it  did 
grant  a remedy,  to  impose  conditions  not  found  in  the  terms  of 
the  contract.  The  committee,  on  consideration,  admitted  that 
the  company  had  the  right  of  redemption,  and  was  entitled  to 
a remedy  to  enable  it  to  enforce  that  right.  When  the  com- 
mittee had  reached  that  point,  it  hardly  seemed  possible  that 
there  could  be  any  further  question  between  the  company  and 
the  committee.  If  the  company  had  a right  to  redeem,  it 
must  result  from  something  already  in  existence,  and  not  be 
dependent  upon  something  which  was  to  be  created  or  brought 
into  existence  as  a part  of,  or  in  connection  with,  the  act 
which  furnishes  the  remedy  for  the  enforcement  of  the  exist- 
ing right.  The  first  section  of  the  bill  which  the  committee 
prepared  and  reported  to  the  Senate  is  as  follows : — 

“ Section  1.  The  Supreme  Judicial  Court  in  the  county  of 
Suffolk  is  hereby  authorized,  upon  the  petition  of  the  Troy 


30 


and  Greenfield  Railroad  Company  therefor,  to  be  presented 
to  said  court  on  or  before  the  first  day  of  July,  in  the  year 
eighteen  hundred  and  eighty-six,  to  ascertain  and  determine, 
in  the  usual  manner  of  proceedings  in  equity,  the  amount  of 
principal  and  interest  of  bonds  or  money  furnished  and 
advanced  to  said  railroad  company,  for  and  concerning  the 
construction  of  the  railroad  of  said  company,  including  the 
Hoosac  Tunnel  and  the  purchase  of  the  Southern  Vermont 
Railroad ; and  also  the  amount,  including  interest  thereon, 
actually  expended  in  good  faith  for  the  purpose  of  construct- 
ing, completing,  and  making  available  for  use  the  line  of 
railroad,  including  the  Hoosac  Tunnel,  as  the  same  is  con- 
structed and  made  from  its  eastern  terminus  in  the  town  of 
Greenfield,  to  the  line  of  the  State  of  Vermont;  and  for 
maintenance  of  said  railroads,  since  the  surrender  which  was 
made  to  the  Commonwealth  by  said  railroad  company,  under 
the  provisions  of  the  act  passed  on  the  twenty-eighth  day  of 
April,  in  the  year  eighteen  hundred  and  sixty-two,  entitled 
‘An  act  providing  for  the  more  speedy  completion  of  the 
Troy  and  Greenfield  Railroad  and  Hoosac  Tunnel.’  If  the 
prices  paid  by  the  Commonwealth  for  any  part  of  the  work 
were  extravagant  or  unreasonable,  or  if  the  amount  expended 
was  increased  by  any  unreasonable  or  improper  management 
on  the  part  of  the  Commonwealth,  said  amount  shall  be 
diminished  by  so  much  as  is  necessary,  to  make  the  cost  what 
it  should  have  been  had  the  work  been  managed  reasonably 
and  properly.  From  said  amount  there  shall  be  deducted  the 
net  income  received  by  the  Commonwealth  from  said  railroad f 
above  the  proper  expenditure  for  maintaining  and  managing 
it.” 


This  bill  is  ably  and  ingeniously  drawn,  but  I suggest  that 
its  title  is  wrong.  It  should  be  entitled  An  act  taking  away 
from  the  company,  under  pretext  of  providing  it  a remedy, 
its  right  of  redemption  under  existing  contracts.  While 
recognizing  the  right  of  the  Troy  and  Greenfield  Railroad 
Company  to  redeem  its  property,  and  purporting  to  give  the 
Supreme  Judicial  Court  in  the  county  of  Suffolk  jurisdiction 
to  ascertain  and  determine,  in  the  usual  manner  of  proceedings 


31 


in  equity,  the  sum  which  the  company  shall  pay  for  such 
redemption,  it  compels  the  court  to  entirely  disregard  the 
terms  of  the  mortgage,  and  the  other  contracts  between  the 
parties,  on  which  the  right  of  redemption  rests,  and  obliges 
the  court  to  ascertain  the  amount  which  the  company  shall 
pay,  by  a rule  which  the  Commonwealth,  in  the  exercise  of 
its  sovereign  power,  now  dictates  to  the  court,  having  no  regard 
to  the  rights  of  the  company  or  the  agreements,  promises,  or 
obligations  on  the  part  of  the  Commonwealth  heretofore  made. 
It  says  to  the  court,  Find  that  the  Commonwealth  has  not 
acted  in  good  faith,  that  it  has  been  extravagant,  unreasona- 
ble, or  guilty  of  improper  management,  or  else  find  that  the 
full  amount  expended  and  claimed  by  the  Commonwealth 
shall  be  paid  by  the  company. 

Should  the  company  present  to  the  court  its  petition  for  the 
redemption  of  its  property,  relying  on  the  jurisdiction  con- 
ferred on  the  court  by  this  bill,  and  offer  in  evidence  the 
mortgages  and  other  contracts  now  existing  between  the  parties 
on  which  the  company’s  right  of  redemption  rests,  the  court 
would  be  obliged  to  say  to  the  company,  We  are  bound  by  the 
provisions  of  the  act  which  confers  on  us  jurisdiction  in  this 
case.  We  cannot  consider  your  rights  under  your  contracts. 
We  cannot  decree  a discharge  of  your  mortgages  on  the  pay- 
ment to  the  Commonwealth  of  the  sum  of  money  which  your 
mortgages  and  the  terms  of  your  contract  for  the  surrender  of 
your  property  call  for.  The  Commonwealth,  in  the  exercise 
of  its  sovereign  power,  adopting  the  proposed  action  of  Vir- 
ginia, in  relation  to  her  indebtedness,  has  made  a “ readjust- 
ment ” of  your  case,  and  our  jurisdiction  is  limited  to  the 
case  as  thus  readjusted,  and  that  entirely  excludes  the  con- 
sideration by  us  of  your  contracts,  or  the  obligations  of  the 
Commonwealth  resulting  from  the  same. 

This  bill  was  referred  to  the  present  Legislature. 

Gentlemen,  you  will  not  consent  that  Massachusetts  shall 
place  herself  in  this  position  till  you  have  first  satisfied 
yourselves  that  she  can  do  so  without  imitating  the  example 
of  Mississippi,  Tennessee,  Virginia,  and  Minnesota  in  relation 
to  their  pecuniary  obligations.  By  what  process  of  reasoning 


32 


you  can  thus  be  satisfied,  I leave  to  the  Hon.  Attorney-General 
to  suggest. 

The  question  between  the  parties  is  not  how  much  money 
has  the  Commonwealth  spent  judiciously,  economically,  and 
in  good  faith  in  completing  the  Troy  and  Greenfield  Railroad 
and  Hoosac  Tunnel.  If  this  were  the  question,  the  court  might 
perhaps  find,  when  it  considers  the  object  and  purposes  which 
the  Commonwealth  had  in  view,  namely,  to  complete  a great 
public  work  of  which  the  State  might  forever  be  proud,  and 
to  open  a new  communication  with  the  West,  the  benefits  of 
which  would  be  forever  felt  by  the  whole  Commonwealth,  that 
the  expenditure  of  $18,000,000  may  have  been  judiciously, 
economically,  and  in  good  faith  made ; and  that  the  central 
shaft,  the  Deerfield  dam,  and  the  double-track  tunnel  on  a 
single-track  railroad,  were  experiments  which  might  properly 
be  tried  in  the  prosecution  of  such  a magnificent  enterprise  by 
a rich  and  powerful  Commonwealth. 

The  question  which  the  court  must  be  authorized  to  decide,  if 
Massachusetts  maintains  good  faith  with  the  company,  is,  how 
much  money  has  the  Commonwealth  spent  in  the  completion 
of  this  road  and  tunnel,  which  it  has  the  right,  by  the  terms 
of  its  contract,  to  claim  from  the  company  as  a condition  for 
the  redemption  of  its  property  ? 

When  that  jurisdiction,  without  limitation  or  qualification, 
shall  have  been  conferred  on  the  court,  then  both  parties  will 
be  in  the  same  position  in  which  they  supposed  they  were 
when  the  surrender  was  made ; till  that  is  done,  the  best  that 
can  be  said  for  the  position  of  Massachusetts  is,  that  she  holds 
her  good  faith  in  abeyance.  All  that  we  ask  is  that  the  court 
shall  be  authorized  to  give  the  same  construction  to  this  con- 
tract that  it  would  give,  if  the  same  contract  had  been  made 
between  parties  subject  in  all  respects  to  the  rules  of  law  and 
equity  pertaining  to  the  redemption  of  mortgages  and  to  other 
contracts. 

The  Legislature  is  again  asked  to  give  the  court  this  juris- 
diction. If  it  refuses,  the  company  will  lose  its  property. 
What  the  Commonwealth  will  lose  is  a question  which  you 
will  undoubtedly  fully  consider  before  final  action. 


33 


AN  ACT 

Providing  for  the  more  speedy  completion  of  the  Troy  and  Greenfield 
Railroad  and  Hoosac  Tunnel. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives,  in 
General  Court  assembled,  and  by  the  authority  of  the  same,  as 
follows: — Section  1.  The  Governor  with  the  advice  of  the 
Council  is  hereby  authorized  and  directed  to  appoint  three 
able,  impartial,  and  skillful  commissioners  to  investigate  the 
subject  of  finishing  the  Troy  and  Greenfield  Railroad,  and  of 
tunneling  the  Hoosac  Mountain,  whose  duty  it  shall  be  to 
report  to  the  Governor  and  Council  what  in  their  judgment 
will  be  the  most  economical,  practicable,  and  advantageous 
method  of  completing  said  road  and  tunnel,  the  estimate  cost 
of  fitting  the  same  for  use,  the  time  within  which  the  tunnel 
can  be  completed,  and  what  contracts  can  be  effected,  and 
with  what  parties  for  completing  said  tunnel  and  road,  and 
the  probable  cost  of  the  same,  the  probable  pecuniary  value 
of  the  road  and  tunnel  when  completed,  and  the  sources  and 
amount  of  traffic  and  income,  and  all  other  facts  in  their 
opinion  useful  to  assist  the  Governor  and  Council  in  determin- 
ing the  best  method  of  securing  a continuous  railroad  com- 
munication between  Troy  and  Greenfield. 

Sec.  2.  The  Troy  and  Greenfield  Railroad  Company  is 
hereby  authorized  to  surrender  to  the  State  the  property  now 
mortgaged ; but  the  right  of  redemption  shall  not  be  barred 
until  ten  years  have  elapsed  after  said  road  and  tunnel  are 
completed,  and  the  same  open  for  use.  The  said  commission- 
ers shall  immediately,  in  the  name  of  the  Commonwealth, 
take  complete  possession  under  the  mortgages  to  the  Common- 
wealth, given  by  the  Troy  and  Greenfield  Railroad  Company 
of  all  property,  rights,  and  interests  intended  to  be  conveyed 
by  said  mortgages,  or  either  of  them,  and  then  shall,  without 
unnecessary  delay,  cause  the  said  railroad  to  be  completed 
and  put  into  running  order,  and  supplied  with  suitable  depots, 
turn-tables,  and  other  usual  and  necessary  appliances,  for  the 
reception  of  freight  and  passenger  cars,  from  the  eastern 
terminus  of  the  Troy  and  Greenfield  Railroad  to  the  Hoosac 
Tunnel. 


34 


Sec.  3.  Said  commissioners  shall  audit  and  allow  all  just 
claims  for  labor,  service,  materials,  land-damages,  incurred 
after  April  6th,  1860,  and  before  July  12th,  1861,  in  carrying 
on  the  work  of  constructing  the  Troy  and  Greenfield  Railroad 
and  Hoosac  tunnel,  and  may  procure  the  release  of  all  attach- 
ments, and  discharge  all  liens  on  said  materials.  The  ac- 
counts thus  audited  shall  be  transmitted  to  the  Governor,  and 
if  approved  by  the  Governor  and  Council,  the  Governor  is 
hereby  directed  to  draw  his  warrant  upon  the  Treasurer,  in 
favor  of  the  claimants,  for  the  amounts  thus  allowed,  to  an 
amount  not  exceeding  $175,000. 

Sec.  4.  Said  commissioners  are  hereby  authorized,  with  con- 
sent of  the  Governor  and  Council,  to  use  or  run  that  portion 
of  the  road  east  of  the  Hoosac  Mountain,  or  lease  the  same  to 
the  “ Vermont  and  Massachusetts/’  the  “ Fitchburg,”  the 
Troy  and  Boston  Railroad  Company,  or  either  of  them,  until 
the  completion  of  the  said  tunnel. 

Sec.  5.  Said  commissioners  shall  have  authority,  with  the 
approval  of  the  Governor  and  council,  to  continue  the  work 
on  the  Hoosac  Tunnel,  by  contract  or  otherwise,  to  expedite 
the  completion  of  said  tunnel. 

Sec.  6.  All  the  net  earnings  and  income  derived  from  said 
railroad,  including  the  tunnel,  shall  be  held  by  the  Common- 
wealth in  trust : First,  for  the  payment  and  reimbursement 
of  the  interest  on  all  loans,  advancements,  and  disbursements 
of  the  Commonwealth  on  account  of  said  railroad  or  tunnel. 
Second,  for  the  payment  and  reimbursement  to  all  parties 
having  a legal  right  thereto. 

Sec.  7.  The  Governor  is  hereby  authorized  to  draw  his  war- 
rant on  the  Treasurer  of  the  Commonwealth  for  such  sums,  as 
may  be  required  from  time  to  time  by  the  commissioners  for 
the  purpose  of  carrying  out  the  provisions  of  this  act,  and  the 
amount  of  the  same  is  hereby  appropriated  therefor ; and  the 
Treasurer  of  the  Commonwealth  is  hereby  authorized  to  issue 
scrip,  or  certificates  of  debt,  in  the  name  and  in  behalf  of  the 
Commonwealth,  to  an  extent  sufficient  to  secure  the  required 
funds,  which  scrip  shall  bear  such  rate  of  interest  as  is  allowed, 
at  the  time,  on  State  scrip  issued  for  other  purposes,  and  shall 


35 


be  redeemable  at  the  end  of  thirty  years  from  the  date 
thereof ; and  he  shall  sell  or  otherwise  use  the  same  at  his 
discretion,  to  procure  the  sum  necessary  to  meet  the  payments 
in  this  act  provided:  Provided , That  all  expenditures  and 
advances  made  under  and  by  virtue  of  this  act  shall  be  on 
account,  and  form  part,  of  the  two  millions  of  dollars  author- 
ized to  be  loaned  in  State  scrip  to  the  Troy  and  Greenfield 
Railroad  Company  by  chapter  two  hundred  and  twenty-six  of 
the  acts  of  eighteen  hundred  and  fifty-four;  and  said  expendi- 
tures and  advances,  together  with  all  sums  hitherto  advanced 
to  said  company,  excepting  the  sums  advanced  on  account  of 
the  “Southern  Vermont  Railroad,”  shall  not  exceed  in 
amount  the  said  two  millions  of  dollars.  Such  changes  may 
be  made  in  the  location  and  grades  of  the  road,  as  may  be 
necessary  to  improve  the  same ; and  no  lease  shall  be  made  of 
the  portion  of  the  road  east  of  the  tunnel  for  a term  exceed- 
ing six  years ; nor  shall  such  portion  be  constructed  without 
the  approval  of  the  Governor  and  Council. 

Sec.  8.  All  acts  and  parts  of  acts  inconsistent  herewith 
are  hereby  repealed. 

Sec.  9.  This  act  shall  take  effect  upon  its  passage. 

Approved  April  28th,  1862. 


. 


ATTORNEY-GENERAL  MARSTON’S  ARGUMENT. 


Mr.  Chairman  and  Gentlemen : 

At  present  I think  I may  confine  myself  to  what  may  be 
regarded  as  the  general  grounds  which  I assume  here.  I am 
not  prepared,  of  course,  to  go  at  once  into  all  the  matters  of 
detail  suggested  by  the  learned  and  exhaustive  argument 
which  has  just  been  made ; but,  with  regard  to  the  general 
proposition,  I can  state  the  position  of  the  Commonwealth, 
perhaps,  so  that  the  Committee  can  understand  what  is  claimed. 
The  argument  which  is  made  for  the  petitioners  is  based  upon 
the  proposition,  in  the  main,  that  the  subsisting  contract  be- 
tween the  Commonwealth  and  the  Troy  and  Greenfield  Rail- 
road Company  is  to  be  found,  in  its  substance,  in  the  act  of 
1862,  which  has  been  read  in  part,  and  which  has  been  re- 
ferred to  in  other  respects.  I claim  that  the  relations  of  the 
parties  are  not  to  be  found  in  the  act  of  1862,  except  as  that 
furnishes  the  power  to  the  Troy  and  Greenfield  Railroad  Com- 
pany to  do  what  it  did,  in  the  way  of  surrender  under  that 
act,  and  provides  for  agents  of  the  Commonwealth  to  transact 
and  do  what  was  done  by  the  Commonwealth  in  receiving  the 
surrender  under  that  act ; but  that  we  must  resort  to  the  sev- 
eral mortgages  which  have  been  made  for  the  purpose  of  in- 
quiring what  the  attitude  of  one  party  is  towards  the  other  in 
respect  to  this  property  that  is  now  called  the  Troy  and 
Greenfield  Railroad  and  Hoosac  Tunnel ; because,  whatever 
modifications  the  act  of  1862  may  have  made  in  the  preceding 
contracts,  in  the  bonds  and  mortgages,  at  the  time  of  the  pass- 
age of  that  act,  there  was  another  mortgage  which  was  coin- 
cident with  that  act,  and  that  mortgage  expresses  what  was 
understood  to  be  the  relation  of  the  parties  after  the  passage 
of  that  act  of  1862.  We  need  not  resort  to  the  act,  but  we 
resort  to  the  mortgages,  for  ascertaining  the  rights  which  are 
here  asserted. 


(37) 


38 


That  will  lead  us  to  inquire  what  it  was  that  the  Troy  and 
Greenfield  Railroad  Company  mortgaged,  and  what  were  the 
conditions  of  the  mortgages,  because  the  Troy  and  Greenfield 
Railroad  Company  comes  here  to-day  and  asks  to  redeem  the 
Hoosac  Tunnel,  which  did  not  exist  when  it  made  its  mort- 
gage— which  it  never  had  built — comes  and  asks  to  take  the 
very  property  which  has  been  created,  and  the  rights  and 
beneficial  conditions  of  things  which  have  been  created  since 
the  mortgages  were  made,  and  which  are  not  included  within 
the  terms  of  any  one  of  the  mortgages  which  the  railroad 
company  made  to  the  Commonwealth. 

We  shall  have  to  inquire,  then,  what  it  was  that  was  mort- 
gaged, and  also  what  were  the  conditions  of  the  mortgages. 
Now,  at  the  bottom  and  basis  of  these  mortgage  transactions 
lies  a bond  which  is  dated  the  28th  of  July,  1855,  and  the 
condition  of  that  bond  is,  in  brief,  after  citing  the  act  of  1854 : 
— “ If  the  said  Troy  and  Greenfield  Railroad  Company  shall 
comply  with  the  requisitions  of  this  act,  and  shall  faithfully 
expend  the  proceeds  of  said  scrip  in  the  construction  of  their 
road,  as  provided  in  said  act,  and  shall  indemnify  and  save 
harmless  the  Commonwealth  from  all  loss  or  inconvenience  on 
account  of  said  scrip  or  certificates ; and  if  said  corporation 
shall  and  will  pay  the  principal  sum  of  said  scrip  or  certificates 
which  may  be  delivered  to  their  treasurer  punctually  when  the 
same  shall  become  due,  or  such  part  thereof  as  the  sinking 
fund  may  be  insufficient  to  pay  and  the  interest  thereon  semi- 
annually, as  the  same  shall  fall  due;  then  and  on  the  above 
conditions  the  foregoing  obligation  shall  be  void,”  &c.;  and  I 
have  yet  to  be  informed  that  the  Troy  and  Greenfield  Rail- 
road Company  have  done  these  things,  which  it  obliged  itself 
to  do. 

F ollowing  the  method  more  in  vogue  in  other  States  than 
this,  in  such  transactions,  is  a mortgage  conditioned  for  the 
performance  of  all  the  conditions  of  this  bond — that  is,  the 
transaction  consists  of  a bond  and  mortgage,  rather  than  a 
simple  mortgage  deed  containing  the  whole  transaction. 

Afterwards,  there  was  a second  mortgage,  and  that  pro- 
vides, as  its  conditions,  that  “If  the  Troy  and  Greenfield 


39 


Railroad  shall  well  and  truly  do  and  perform  all  and  every 
the  obligations,  duties,  covenants,  and  agreements  by  them 
heretofore  undertaken,  covenanted,  and  agreed  to  be  done 
and  performed,  in  the  several  bonds,  mortgages,  and  convey- 
ances heretofore  made  and  delivered  to  said  Commonwealth, 
and  shall  also  well  and  truly  do,  perform,  and  observe  all  the 
terms,  conditions,  and  requirements  of  the  several  acts  of  the 
General  Court,  heretofore.” 

I read  this  to  show  that  the  condition  of  that  second  mort- 
gage was  the  performance  of  all  that  had  gone  before,  and 
now  I come  to  the  third  mortgage,  which  was  made  on  the 
25th  of  April,  1862,  following  the  act  of  1862,  which  the 
learned  counsel  cites  as  forming  the  present  contract  between 
the  Troy  and  Greenfield  Railroad  Company  and  the  Com- 
monwealth, and  that  mortgage  made  immediately  after  that 
provides  this. 

Mr.  Gooch: — Are  you  not  mistaken  in  your  dates? 

Mr.  Marston  : — It  may  be.  Am  I ? 

Mr.  Gooch  : — The  date  of  the  act  on  which  we  rely  is 
April  29th,  1862. 

Mr.  Marston: — Well,  sir,  I am  looking  at  this  mortgage 
to  see  what  it  was.  In  some  of  the  copies  it  is  printed  April 
25th,  but  I now  think  it  must  have  been  March  25th.  I am 
claiming  this.  If  I am  wrong  in  saying  that  it  was  a subse- 
quent date,  I think  I am  right  in  saying  that  it  was  simulta- 
neous in  its  execution,  because  it  is  dated  March  25th,  and  it 
is  acknowledged  as  late  as  the  11th  of  April,  and  it  is  re- 
corded the  28th  of  April  in  one  place,  the  30th  of  April  in 
another,  the  2d  of  May  in  another,  the  12th  of  May  in 
another,  and  the  24th  of  May  in  another,  so  that  while  the 
act  was  passing  along,  and  at  the  time  when  the  act  passed, 
this  mortgage  was  in  the  hands  of  the  parties,  and  was  pass- 
ing through  the  various  stages  of  execution,  acknowledgment, 
and  record,  and  must  be  taken  to  be  part  of  the  same  transac- 
tion. 

Well,  the  claim  here,  Mr.  Chairman  and  gentlemen,  is  to 
redeem  under  certain  mortgages,  and  not  under  the  act  of 
1862.  We  go  back  to  the  mortgage,  which  is  the  formal 


40 


transaction  between  the  parties,  and  see  that  it  provides — 
every  one  that  is  drawn  provides — that  the  railroad  company 
shall  well  and  truly  do  and  perform  all  and  every  obligation, 
condition,  covenant,  and  agreement  by  them  agreed  to  be  per- 
formed in  each  mortgage,  and  in  the  underlying  bond  of  July, 
1855,  so  that  the  last  mortgage  goes  back  to  the  first,  and  to 
the  bond  which  underlies  the  first,  and  the  provision  all 
along  is,  that  the  Troy  and  Greenfield  Railroad  Company 
shall  do  and  perform  everything  that  it  has  agreed  to  do  and 
perform  in  the  bond  and  in  this  whole  series  of  mortgages. 
We  are  here  to  consider  what  ought  to  be  done  in  respect  to 
the  right  which  they  claim  to  have  to  redeem  under  these 
mortgages,  and  not  by  force  of  something  which  they  can  de- 
rive under  an  independent  contract  from  the  language  or  the 
terms  of  the  act  of  1862. 

So  that  before  the  Troy  and  Greenfield  Railroad  Company 
can  have  the  right  to  redeem,  upon  any  terms  of  payment 
under  these  mortgages,  it  must  come  here  and  show  that  it  has 
done  and  performed  everything  that  it  undertook  to  do  and 
perform.  For  there  are  many  things  in  the  course  of  this 
construction  of  the  tunnel  that  should  have  been  done  by  the 
petitioner  which  can  not  now  be  done,  and  for  the  not  doing 
of  which  money  might  be  compensation  in  damages,  if  we 
were  engaged  in  inquiring  into  that  question ; but  the  pay- 
ment of  money  as  damages  does  not  fulfill  the  requirement  of 
the  bond  and  mortgage.  Till  these  things  which  were  agreed 
to  be  done  are  shown  to  have  been  done  when  they  might  have 
been  done  and  ought  to  have  been  done,  the  petitioner  has  not 
shown  here  a right  to  redeem  anything  upon  any  terms. 

We  next  look  and  see  what  it  was  that  the  Troy  and  Green- 
field Railroad  Company  mortgaged  to  the  Commonwealth,  and 
the  language  is  substantially  the  same  in  all  these  mortgages, 
so  I read  from  the  last  one,  as  being  quite  as  expressive  and 
explicit  as  the  others,  that  the  Troy  and  Greenfield  Company 
mortgaged  to  the  Commonwealth  “ all  the  franchises  and 
property  whatsoever,  real,  personal,  and  mixed,  of  said  Troy 
and  Greenfield  Railroad  Company.”  That  is  what,  if  any- 
thing, it  has  the  right  to  redeem. 


41 


The  great  error  which  underlies  this  application  is,  in  my 
judgment,  that  this  railroad  company  comes,  after  many  years 
of  silence,  and  asks,  not  only  to  redeem  the  property  which  it 
mortgaged  to  the  Commonwealth,  but  that  we  shall  hand  over 
to  it  this  completed  road  and  tunnel,  with  all  its  buildings  and 
appliances,  upon  the  payment  of  $2,000,000.  I say  $2,000,000, 
because  I speak  of  that  as  the  round  sum.  Of  course  I mean 
with  whatever  interest  should  be  attached  to  it. 

That  is  to  say,  after  having  mortgaged  certain  small  things 
to  the  Commonwealth  in  1862,  which,  in  the  course  of  time, 
and  by  the  action  of  the  Commonwealth,  and  the  expendi- 
ture of  large  sums  of  money,  have  grown  into  certain  great 
things, — because  in  1862  it  mortgaged  to  the  Commonwealth 
certain  incomplete  and  useless  thiugs,  which  have  since  then 
grown  into  certain  complete  and  valuable  things,  that  now 
upon  payment  of  $2,000,000  it  is  entitled  to  take  and  have 
the  complete  and  valuable  thing  in  the  place  of  the  imperfect 
thing  which  it  mortgaged  at  that  time.  Now  that  I contro- 
vert. If  it  were  possible,  Mr.  Chairman  and  gentlemen,  to 
find  to-day  just  what  they  mortgaged,  then  we  should  have  a 
means  of  seeing  just  what  they  were  entitled  to  redeem ; but 
if,  through  the  course  of  events,  the  necessary  course  and  cur- 
rent and  logic  of  these  events,  they  have  come  to  such  a place 
that  those  things  can  not  be  separated  and  distinguished, — 
why,  then  they  are  not  entitled  to  an  absolute  right  to  redeem 
anything,  but  may  have  rights  of  compensation  of  an  entirely 
different  character. 

The  learned  counsel  who  has  argued  this  matter  for  the 
petitioners  thus  far,  claims  that  this  is  an  ordinary  transaction 
of  mortgage  between  A and  B,  where  we  should  legislate  and 
act  exactly  as  if  it  was  such  a transaction ; but  you  know, 
Mr.  Chairman  and  gentlemen,  that  there  is  very  slight  simi- 
larity between  a simple  mortgage,  between  two  men,  of  an 
ordinary  piece  of  property,  and  this  complicated  matter  that 
we  have  before  us.  Nothing  has  ever  existed  before  like  it ; 
nothing  that  approaches  very  near  to  it.  Still  some  principles 
are  applicable  to  it,  as  to  mortgages  between  individuals,  and 
assist  us  in  gettting  at  the  real  ground. 


42 


These  gentlemen  came  in  the  year  1876,  before  this  subject 
had  acquired  the  impulse  and  impetus  that  it  now  has,  and 
asked  that  the  legislature  would  authorize  the  selection  and 
employment  of  impartial  referees  to  determine  what  amount 
should  be  paid  by  the  company  for  the  redemption  of  its  prop- 
erty. Now,  that  was  a sensible  proposition.  It  approached, 
I think,  the  requirements  of  this  case.  Let  us  illustrate,  as 
the  learned  counsel  has  referred  to  the  ordinary  condition  of 
mortgages  between  parties,  what  the  state  of  things  would  be 
between  two  men.  I have  given  my  brother  Gooch  my  note 
some  years  ago,  and  it  is  outlawed,  and  he  can  not  bring  suit 
on  it,  and  he  comes  to  me  and  says,  “ I want  you  should  give 
me  a writing  which  will  authorize  me  to  sue  you.”  I say, 
“ No,  sir  ; various  things  have  transpired  between  you  and  me 
since  that  note  was  given ; let  us  sit  down  together  and  examine 
the  matter,  and  let  us  see  what  is  just  and  right.  Whatever 
is  right,  I will  do.”  “ But,”  he  says,  “ didn’t  you  mean  when 
you  gave  me  that  note  to  pay  me  ?”  “ Yes.”  “ Didn’t  you  mean 
that  I might  sue  you  upon  it  at  any  time  in  court?”  “ Yes.” 
“ Well,  then,”  he  says,  “give  me  the  right  to  sue  you  now — I 
won’t  take  anything  else.”  I say,  “ No ; let  us  sit  down  and  con- 
fer about  the  matter.  I think  you  owe  me  certain  things  which 
should  be  arranged,  and,  if  we  can  not  agree  about  it,  let  us  call 
in  some  referee  (as  they  said  in  1876),  or  have  some  tribunal 
to  arrange  a settlement.”  He  says,  “ No,  give  me  the 
right  to  sue  you  in  court.”  “ But,”  I say,  “ my  rights  may 
have  become  imperiled  since  the  note  was  given ; some  wit- 
nesses essential  to  the  establishment  of  my  rights  have  gone 
away  or  have  died ; there  have  been  independent  transactions 
between  you  and  me.”  Therefore  when  he  says,  “ I don’t  care, 
give  me  the  right  to  sue  you,  I won’t  take  anything  else,”  I 
say,  “ Very  well,  I refuse  to  grant  you  that  right.”  “ Then,” 
he  says,  “ you  mean  to  repudiate  your  note  ; you  mean  to  vio- 
late the  conditions  of  it,  and  to  forfeit  your  honor  and  integ- 
rity.” “ Well,”  I say,  “ you  may  say  so ; I don’t  think  so. 
I am  ready  to  agree  to  sit  down  and  have  the  matter  settled 
right,  between  us.”  But  he  says,  “No,  I will  not  have  that, 
you  must  give  me  a right  authorizing  me  to  sue  you  in 


43 


court ; ” and  I say,  “ Perhaps  the  delay  incident  to  litigation 
may  ruin  or  impair  some  of  my  rights  as  compared  with  your 
rights  ; and  since  you  insist  upon  the  granting  of  a right  to  go 
to  court,  I insist  on  my  right  and  stand  by  the  statute  of  limi- 
tations; I stand  where  I am.”  And  so  the  State  stands. 
They  come  here  and  say,  “We  want  you  to  hand  us  over  this 
tunnel  property  on  payment  of  $2,000,000  and  interest. 
We  want  you  to  let  us  sue  you  for  that.”  This  is  what  they 
ask.  We  answer,  “No,  there  is  no  need  of  that,  let  us  sit 
down  together,  and  talk  the  matter  oyer,  between  yourselves 
on  the  one  hand,  and  the  Commonwealth  on  the  other,  and 
see  what  is  right.”  They  say,  “ No,  we  must  have  the  right 
to  sue  you  in  the  courts,  anyhow,  and  we  will  not  take  anything 
else.”  W e reply  that  that  may  be  the  means  of  great  loss  to  the 
Commonwealth.  They  say,  “ We  do  not  care  for  that,  we  want 
the  right  to  sue  you.”  Then  we  answer,  “ If  you  do  not  choose 
to  put  yourselves  in  such  a position  that  while  your  rights  are 
secured  those  of  the  Commonwealth  are  not  impaired,  then  we 
will  stand  just  where  we  are;  and  we  do  not  much  care 
whether  some  Western  States  are  placarded  with  handbills 
representing  that  Massachusetts  has  repudiated  her  faith,  any 
more  than  we  cared  about  the  cabalistic  figures  329,  with 
which  the  country  was  so  full  not  long  ago.  We  know  we  are 
ready  to  do  justice,  but  we  exact  justice  also  from  you.”  That 
I understand  to  be  the  position  of  the  Commonwealth,  as  it  is 
stated  by  his  Excellency  the  Governor  in  his  communication 
to  the  Legislature.  We  have  gone  on  here  and  built  this  rail- 
road and  excavated  this  tunnel,  which,  against  all  the  wisdom 
of  the  engineers  of  that  day,  has  cost  five  times  as  much  or 
more,  than  it  was  then  expected  that  it  would  cost.  W e have 
gone  on  and  built  a tunnel  sufficient  for  two  tracks,  and  every- 
thing up  there  is  imploring  the  Legislature  to  lay  two  tracks, 
and  the  business  on  that  line  can  not  be  done  without  two 
tracks  much  longer,  and  yet  our  friends  come  here  and  talk 
about  handing  the  tunnel  over  to  them,  with  this  double  track ; 
because  if  they  take  anything  they  must  take  all.  If  we  are 
out  and  they  are  in,  they  are  in  of  all.  They  say,  “We  can 
take  this  road  and  tunnel  with  all  the  appliances,  and  we  are 


44 


only  to  pay  what  was  talked  of  when  this  mortgage  was 
made.”  The  position  of  the  Commonwealth  is,  that,  consider- 
ing all  that  has  taken  place  since  then,  this  adjustment  be- 
tween them  and  the  Commonwealth  should  be  made  in  a very 
different  manner.  There  has  been  a call  for  the  expenditure 
of  money  which  to-day  stands  upon  the  books  at  twenty  mil- 
lions of  dollars,  and  they  want  to  take  that  property  upon  the 
payment  of  $2,000,000  and  interest. 

What  is  this  Troy  and  Greenfield  Railroad  Company?  We 
only  know  of  it  when  it  comes  clamoring  at  the  State  House 
for  benefits.  I do  not  know  that  it  has  a corporate  existence 
to-day.  It  has — as  I said  last  year,  and  it  was  not  contro- 
verted, and  therefore  I repeat  it — to  my  knowledge  not  a 
dollar  in  the  world,  and  can  not  redeem  this  property  itself,  if 
it  was  to  be  redeemed  upon  the  payment  of  $500,000,  unless 
it  should  go  somewhere  and  mortgage  the  road  to  somebody 
that  may  be  represented  by  counsel  inside  or  outside  of  the 
Commonwealth — I don’t  know  which — and  make  another 
mortgage,  which  it  never  can  redeem.  So  this  road,  in  order 
to  raise  $2,000,000,  is  handed  over  to  some  mortgagee  in  New 
York,  or  Detroit,  or  Philadelphia,  or  elsewhere,  who  is  sure  to 
take  possession  of  it,  and  reap  the  benefits  which  will  result 
from  that  great  line  of  traffic. 

Now,  then,  it  is  suggested  in  the  argument  which  has  been 
presented  here,  that  this  road  and  tunnel  line  will  earn  only  six 
per  cent,  upon  a certain  valuation  which  has  been  stated,  and, 
therefore,  that  is  as  much  as  this  mortgagor  should  pay  for  it. 

To  that  it  is  answered,  that  the  road  has  not  yet  begun  to 
show  its  earning  power.  It  was  not  until  last  September  that 
the  Fitchburg  Railroad  Company  had  a contract  reaching  far 
enough  into  the  future — the  seven  years’  contract  made  under 
authority  of  the  last  Legislature — that  would  justify  that  road 
in  putting  on  sufficient  equipment  to  proceed  and  show  what 
this  line  could  do ; the  earning  power  of  that  line  is  only  begin- 
ning to  be  felt  and  manifested,  and  it  can  not  be  adequately 
shown  until  the  completion  of  a double  track. 

Here  is  all  this  great  business  between  the  East  and  the 
West;  this  vigorous  pulsation  of  inland  commerce  between 


45 


Boston  and  Chicago,  St.  Louis  and  San  Francisco,  provided  for 
or  to  be  provided  for  by  the  Commonwealth ; yet  these  gentle- 
men come,  modestly  saying  that  the  road  will  not  earn  more 
than  the  interest  upon  a couple  of  million  of  dollars.  There- 
fore, they  say,  that  is  as  much  as  they  ought  to  pay,  and  that 
they  ought  to  have  it  for  that,  and  the  other  $18,000,000  that 
has  been  expended  is  to  rest  as  a loss  to  the  treasury  of  Mas- 
sachusetts, to  the  detriment  of  the  people  of  Massachusetts — a 
special  detriment,  Mr.  Chairman,  to  the  men  in  your  county 
and  upon  the  shores  of  the  Old  Colony,  who,  by  the  construc- 
tion of  these  Western  lines,  have  lost  their  carrying  trade  by 
water.  They  have  paid  in  their  taxes  for  this  $18,000,000. 
Whatsoever  benefit  may  come  hereafter  they  have  a right  to 
share  in ; but  it  is  a new  suggestion,  of  a sort  of  original  jus- 
tice, that  the  Troy  and  Greenfield  Railroad  Company  should 
have  this  property  for  the  capitalization  of  what  its  net  earnings 
will  be,  while  the  loss  of  $18,000,000,  more  or  less,  falls  upon 
the  people  of  the  Commonwealth. 

Now,  then,  the  claim  which  I make  here  for  the  State  is,  that 
if  any  bill  is  passed,  is  reported,  it  should  be  substantially  like 
that  reported  last  year,  which  is  in  substantial  accord  with  the 
view  which  his  Excellency  the  Governor  expresses  in  his  mes- 
sage to  the  Legislature ; that  gives  to  the  Troy  and  Greenfield 
Railroad  Company  all  that  it  ought  to  have,  and,  at  the  same 
time,  protects  the  Commonwealth  and  its  treasury  against  the 
great  injustice  of  which  I spoke  just  now.  That  is  stating 
no  new  view  of  the  matter.  My  predecessor  in  office,  in  an 
opinion  which  he  furnished  in  February,  1874,  discussed  this 
subject  briefly;  but  the  concluding  sentence  of  his  opinion 
summarizes  the  whole  better,  in  my  opinion,  than  it  has  ever 
been  stated  elsewhere ; that  is  to  say,  in  less  words  and  more 
concisely.  He  says,  “ Under  these  circumstances,  upon  prin- 
ciple and  authority,  I am  of  opinion  that  the  Troy  and  Green- 
field Railroad  Company  shall,  upon  the  completion  of  this 
road  and  tunnel,  establish  a right  to  redeem,  such  redemption 
can  only  take  place  upon  the  repayment  to  the  Common- 
wealth of  all  sums  necessarily  and  properly  expended  in  com- 
pleting, preserving,  and  making  productive  the  property.” 


46 


Well,  I can  understand  what  gentlemen  may  say  in  reply  to 
that  suggestion ; that  if  that  is  the  law  in  this  case,  then  why 
do  you  hesitate  to  go  to  the  court  and  have  this  redemption 
take  place  upon  principles  of  law  in  conformity  to  your  position  ? 
I answer  to  that,  in  the  first  place,  what  I said  a little  while 
ago,  that  when  they  come  to  the  State  of  Massachusetts,  this 
sovereign  State,  for  whose  honor  I certainly  am  as  solicitous  as 
any  of  the  gentlemen  here,  and  want  an  adjustment  of  this  mat- 
ter, they  should  be  treated,  Mr.  Chairman,  just  as  you  would 
treat  them  as  a man  of  business  when  they  come  and  say,  “ Sir, 
I thought  I had  a right  to  sue  you,  and  I want  you  to 
give  me  the  authority  to  sue  you  now  in  the  courts.” 
Your  reply  would  be,  as  a man  of  business,  and  as  an 
honest  and  just  man,  “ Whatever  matters  of  difference  there 
are  between  you  and  me,  let  us  sit  down  here  and  adjust.  I 
want  to  do  you  justice,  and  I want  you  to  do  me  justice ; but, 
as  for  allowing  you  to  sue  me  in  the  courts,  I do  not  think  it 
is  quite  right  that  I should  grant  you  that  privilege,  if  my 
rights  are  to  be  imperiled  thereby,  and  when  a conference 
might  result  in  the  establishment  of  our  mutual  rights.”  So, 
then,  when  they  come  here  and  say  to  you,  representing  here 
the  Commonwealth,  that  they  desire  to  have  an  act  passed  that 
will  enable  them  to  sue  the  Commonwealth  in  the  courts,  the 
proper  reply  is,  “ We  concede  that  upon  some  terms  you  are 
entitled  to  redeem  some  property,  if  that  redemption  is  possi- 
ble. If  this  property  is  in  such  a condition  now  that  you 
can  redeem  it  and  have  what  you  ought  to  have,  and  no 
more,  then  we  will  arrange  that ; but  if,  on  the  other  hand, 
this  thing  which  in  1862,  and  twice  before,  was  mortgaged  as 
a franchise,  and  nothing  but  a franchise,  and  is  now  a railroad 
and  a tunnel,  if  you  were  to  come  and  take  that  railroad  and 
tunnel,  which  has  cost  the  Commonwealth  a very  large  amount 
of  money,  you  must  sit  down  with  the  Commonwealth  and 
adjust  the  terms  of  settlement.  You  must  sit  down  with  the 
Commonwealth  and  see  what  is  right,  not  only  to  you,  but  to 
the  State.  So  we  will  adjust  here  what  ought  to  be  adjusted 
here,  and  leave  to  some  other  method  of  settlement  that  which 
can  not  be  adjusted  here,  and  if  you  show  you  can  pay  for  what 


47 


you  ought  to  have,  then  you  shall  have  what  belongs  to  you  ; ” 
but  when  you  say,  “We  want  the  right  to  sue  you  in  the  courts, 
and  will  take  nothing  else,”  we  say  you  impugn  the  honor  and 
honesty  of  Massachusetts,  and  it  is  nothing  less.  We  say, 
you,  gentlemen  of  the  Committee  say,  we  are  Massachusetts. 
This  matter  is  here  in  the  hands  of  Massachusetts,  and 
until  the  petitioner  proposes  to  adjust  things  upon  a proper 
and  fair  basis  which  secures  and  maintains  its  rights  upon  the 
one  hand,  and  preserves  and  protects  the  interests  of  the  people 
of  Massachusetts  upon  the  other  hand,  we  propose  to  hold  to 
the  advantage  which  we  have.  You  shall  not  sue  the  Com- 
monwealth until  we  have  tried,  in  a proper  way,  to  see  if  we 
can  not  come  to  a settlement  of  this  whole  matter,  and  when 
we  have  offered  you  what  you  ought  to  have  upon  the  pay- 
ment of  a just  amount,  and  you  refuse  to  accept  it,  then 
the  honor  of  the  Commonwealth  is  maintained,  and  you 
have  no  reason  to  complain  or  find  fault  with  us. 

Now,  as  to  what  has  been  said  upon  the  other  side  with 
regard  to  the  capitalization  of  the  net  earnings  as  a basis  of 
settlement,  I may  be  permitted  to  say  a word,  because  I 
assume  that  a principle  of  law  applicable  to  this  matter  might 
be  stated  in  this  way:  That  if  an  imperfect,  incomplete 
thing  is  mortgaged,  which  it  is  contemplated  by  both  parties 
shall  be  perfected  and  made  complete,  and  the  mortgagee  goes 
on  and  perfects  and  completes  that  thing  according  to  the 
original  intention,  so  that  a valuable  thing  is  made  out  of  the 
imperfect  and  valueless  thing,  when  the  mortgagor  comes  to 
redeem,  he  should  pay  not  only  the  mortgage  debt  advanced, 
but  what  has  been  expended  to  make  valuable  the  thing  that 
was  mortgaged,  according  to  the  original  plan  ; and  if  in  the 
construction  of  that  thing,  which,  as  in  this  case,  takes  years 
of  time,  and  draws  to  its  assistance  the  enlightenment  of  new 
engineering  attainment,  it  is  thought  best  to  vary  that  thing 
from  what  was  originally  contemplated,  but  according  to  the 
general  scope  of  what  was  proposed,  and  the  party  to  be 
affected  by  it  stands  by  all  the  time  with  full  knowledge,  and 
does  not  object,  then,  when  he  comes  in  to  redeem,  he  must  not 
only  pay  the  mortgage-money  advanced,  but  what  this  better 


48 


thing  has  cost  for  the  general  purposes  which  were  in  view 
when  the  thing  was  projected,  as  in  this  case.  Assume  that 
all  that  was  thought  to  be  necessary  in  the  beginning  was  a 
little  tunnel,  fourteen  feet  wide,  and  say  so  many  feet  high — 
a little  avenue  into  the  treasury  of  Massachusetts — and  that 
afterwards  it  was  thought  wise,  as  every  railroad  man  knows 
was  wise,  as  the  president  of  the  Troy  and  Greenfield  Railroad 
Company  must  admit,  if  he  would  speak  to-day,  was  wise,  that 
if  a tunnel  was  built  at  all,  it  should  be  adequate  for  a double 
track,  and  this  Troy  and  Greenfield  Railroad  Company  stood 
by  all  the  time,  knowing  all  that  was  done,  and  did  not  open 
its  lips  in  objection,  then  it  may  be  held  to  have  acquiesced  in 
that  method  of  construction,  and  must  pay  what  that  better 
tunnel  cost,  with  interest.  And  I assert  that  there  never  was 
any  objection  or  protest,  but  constant  and  complete  acqui- 
escence. 

Some  reference  was  made  to  the  fact  that  Colonel  Alvah 
Crocker,  who  was  the  president  of  the  Troy  and  Greenfield 
Railroad  Company,  was  made  Commissioner  of  the  State,  to 
show  that  the  very  man  who  was  there  projecting  and  pushing 
forward  and  energizing  this  work — was  the  president  of  this 
mortgagor  company. 

Mr.  Gooch: — We  didn’t  make  him  Commissioner. 

Mr.  Marston: — No,  sir;  I do  not  speak  of  that.  The 
learned  counsel  looks  at  a different  phase  of  the  matter  en- 
tirely. It  was  said  that  we  made  him  Commissioner  because 
he  was  interested  in  the  Fitchburg  Railroad ; because  he  was 
interested  in  the  success  of  this  line.  We  made  him  Commis- 
sioner for  the  very  reason  that  the  Troy  and  Greenfield  Rail- 
road Company  made  him  its  president ; because  they  wanted 
the  power  of  the  Fitchburg  Railroad  acting  in  conjunction 
with  them,  to  assist  them  in  this  enterprise. 

Mr.  Gooch  : — We  father  him  as  far  as  we  used  him ; you 
must  do  the  same. 

Mr.  Marston: — Yes,  sir;  we  do.  We  have  no  occasion 
to  blush  for  anything  that  Colonel  Crocker  did. 

The  Chairman: — “Wait  a moment,  gentlemen.  I do  not 
think  this  taking  time  is  proper.  You  will  have  two  chances.” 


49 


Mr.  Gooch  : — You  will  certainly  pardon  me  when  it  is 
charged  that  I have  made  an  imputation  on  a gentleman  so 
well  known  as  Colonel  Crocker,  and  who  was  my  personal 
friend — while  I deny  that  I made  any  imputation— 

The  Chairman  : — The  Committee  do  not  understand  that 
you  made  any  such  imputation. 

Mr.  Gooch  : — Then  I have  nothing  more  to  say. 

Mr.  Marston  : — Then  there  is  no  cause  of  my  saying  any- 
thing in  vindication  of  Colonel  Crocker’s  memory.  He  was 
faithful  to  all  his  trusts ; he  was  as  faithful  to  the  Troy  and 
Greenfield  Railroad  Company  as  to  any  other  trust  he  had  in 
hand. 

The  proposition  here  is,  as  I stated,  that  when  the  Troy  and 
Greenfield  Railroad  comes  and  says,  “We  want  to  sue  the 
Commonwealth,”  the  answer  may  properly  be  just  what  you 
or  I would  say  to  a man  who  came  to  us,  and  wanted  us  to 
put  him  in  a position  to  sue  either  one  of  us. 

“ These  are  matters  between  us  which  we  can  adjust  our- 
selves,” you  would  say ; “ until  I see  my  interests  are  safe  as 
well  as  yours,  I do  not  propose  to  concede  what  you  ask,  and 
we  will  both  stand  where  we  are.  Or,  if  you  are  willing  to 
confer  with  me  about  this  business  and  see  what  right  and 
justice  demand  in  respect  to  my  claim  and  yours,  we  will  pro- 
ceed to  settle  the  thing  properly  without  going  to  the  courts 
at  all.” 

So  right  and  justice  demand  this,  and  only  this,  that  the 
Troy  and  Greenfield  Railroad  Company  may  redeem  that 
property  on  paying  what  it  cost,  less  any  sums  that  may  ap- 
pear to  have  been  unwisely  or  imprudently  expended  in  the 
light  of  engineering  knowledge  at  that  time.  It  is  not  what 
now  would  be  considered  wise,  but  what  was  discreet  and  pru- 
dent according  to  experience  and  engineering  science  at  the 
time  when  the  thing  was  done.  Deduct,  if  you  please,  any- 
thing of  that  kind.  Let  the  treasury  of  the  Commonwealth 
be  paid  what  it  has  properly  expended  for  this  property  in 
good  faith  by  whoever  proposes  to  come  and  make  payment. 
It  is  not  the  Troy  and  Greenfield  Railroad  Company  except 
in  name.  That  is  what  the  interests  of  the  people  of  the 


50 


Commonwealth  require.  Of  course,  I regret  very  much  that 
gentlemen  on  the  other  side  do  not  agree  with  me.  That  is 
what  I think  will  afford  justice  to  the  Troy  and  Greenfield 
Railroad  Company.  That  is  what  I think  I ought  to  attempt 
to  accomplish  here  for  the  Commonwealth.  That  is  what  I 
think  I ought  to  ask  you  to  hold,  retain,  and  preserve  for  the 
people — for  the  people  of  the  Commonwealth ; to  do  just  what 
his  Excellency  the  Governor,  in  his  communication  to  the 
Legislature,  said,  stating  it  in  his  own  language  : — 

“ The  question  will  occur,  whether  the  legal  relations  of  the 
parties  have  been  modified  in  any  way  by  the  consent,  express 
or  implied,  of  either  of  them,  and  whether  the  party  having 
the  right  to  redeem  has  not  so  acted  with  full  knowledge  of 
the  facts  attending  the  progress  of  the  tunnel,  and  so  acqui- 
esced in  the  manner  and  course  of  its  construction,  allowing 
the  Commonwealth  to  make  its  immense  outlays  for  the  suc- 
cessful completion  of  the  work  without  objection  or  protest, 
that  it  is  now  fully  entitled  to  be  repaid,  in  accordance  with 
general  legal  principles,  what  it  has  thus  expended  in  good 
faith  under  the  advice  of  competent  engineers,  with  all  the 
light  afforded  at  the  time  by  the  highest  intelligence  on  the 
subject,  and  while  carrying  out,  consistently  with  the  general 
original  project,  those  scientific  and  practical  methods  and 
plans  which  then  seemed  reasonable  in  connection  with  an 
enterprise  of  unknown  and  unparalleled  magnitude  and  diffi- 
culty. Where,  also,  in  the  same  good  faith  and  in  the  neces- 
sary development  of  the  work,  changes  were  made  from  the 
original  project,  as  in  the  location  of  the  railroad,  or  the  size 
of  the  tunnel,  which  subsequent  experience  has  shown  to  have 
been  wise  and  beneficial,  and  to  which  the  mortgagor  with  full 
knowledge  made  no  objection,  it  is  claimed  that  the  Common- 
wealth should,  in  accordance  with  the  principles  of  law  ap- 
plicable to  such  a state  of  facts,  be  compensated  for  the  proper 
cost  of  such  changes  and  enlargements,  if  the  mortgagor  ex- 
pects to  come  into  possession  of  them,  and  enjoy  all  the  profit- 
able results  accruing  from  them.  While  the  Commonwealth 
should  so  act  as  to  secure  justice  to  the  Troy  and  Greenfield 
Railroad  Company,  it  should  insist  on  justice  to  itself.” 


51 


I do  not  believe  tbis  Committee  is  to  be  carried  off  its  feet 
by  any  clamor  about  the  danger  of  an  accusation  of  repudia- 
tion against  this  grand  old  State.  When  the  Troy  and  Green- 
field Railroad  Company  comes  here  for  justice,  it  must  allow 
the  Commonwealth  to  have  something  to  say  as  to  what  justice 
requires.  The  petitioner  should  not  be  allowed  to  dictate  its 
own  terms,  and  assert  that  it  will  have  just  what  it  claims  and 
nothing  else.  It  is  enough  that  the  Commonwealth  stands 
ready  to  do  and  to  execute  substantial  justice  without  resort 
to  the  courts. 


* 


ARGUMENT  OF  HON.  J.  H.  CHOATE. 


Mr.  Chairman  and  Gentlemen  of  the  Committee: 

I do  not  propose  to  renew  any  of  the  arguments  that  have 
been  presented  by  the  distinguished  gentlemen  who  opened  this 
discussion  on  the  part  of  the  Troy  and  Greenfield  Railroad 
Company.  So  far  as  his  argument  set  forth  the  facts  upon 
which  you  are  to  solve  the  question  submitted  to  you,  the 
learned  Attorney- General  has  not  undertaken  to  combat  any 
of  them.  In  fact,  it  was  impossible  for  him  to  do  so,  because 
they  are  all  drawn  from  the  records,  and  all  consist  of  official 
acts,  not  on  the  part  of  the  company  but  on  the  part  of  the 
State,  which  are  claimed  upon  one  side  and  the  other  to  affect 
the  rights  of  the  company. 

I shall,  therefore,  endeavor  as  well  as  I may  in  the  short 
time  assigned  to  me,  to  meet  some  of  the  objections  which  the 
Attorney-General  has  interposed,  and  at  the  outset,  if  he  will 
allow  me,  I must  protest  against  the  suggestion  he  made,  which 
might  prejudice  the  Committee,  that  we  and  our  clients  are 
outsiders  and  foreign  to  this  jurisdiction.  We  claim  to  repre- 
sent the  Troy  and  Greenfield  Railroad  Company,  as  it  is  and 
as  it  was  from  the  beginning,  and  the  substantial  interests  we 
represent  are  the  substantial  interests  that  have  been  part  of 
it  from  the  beginning.  So  I,  too,  do  not  wish  to  be  turned 
out  as  an  outsider,  because  I claim  to  be  “ to  the  manor  born  ” 
and  to  belong,  like  yourself,  sir,  to  that  good  old  county  of 
Essex,  which  the  learned  Attorney-General  thinks  has  been 
depleted  by  the  loss  of  its  carrying  trade  by  water,  by  the 
opening  of  this  new  avenue  for  traffic  through  Hoosac  Tunnel, 
and  I propose  to  claim  my  rights  as  a son  of  the  soil  until 
Massachusetts  repudiates  her  contract  obligations,  as  he  now  is 
contending  to  have  her  do. 

Now,  the  Troy  and  Greenfield  Railroad  Company  appears 
here  purely  in  the  attitude  of  a petitioner,  but  as  a petitioner  in 
a position  that  the  State  of  Massachusetts  has  always  taken 
great  pride  in  protecting,  namely,  one  that  had  rights  but  was 

(53) 


54 


helpless  without  her  aid  in  the  assertion  of  those  rights.  That 
it  has  rights  has  never  been  denied,  and  has  been  conceded 
here  to-day,  by  the  chief  law  officer  of  this  State.  These 
rights  may  not  be  of  any  pecuniary  value ; if  the  grounds 
that  he  takes  are  tenable  and  shall  be  finally  sustained,  they 
are  worse  than  valueless;  but  that  it  has  a right,  and  a 
right  to  assert  that  right,  he  must  concede  and  does.  Be- 
cause it  is  plainly  given  to  us  by  the  express  letter  of  the 
act  of  1862,  which  declares  that  this  company  shall  have  the 
right  of  redemption,  some  right  or  other,  for  ten  years  after 
the  road  shall  have  been  completed  and  be  in  running  order, 
which  took  place  in  the  year  1875  or  1876.  And  yet,  singu- 
larly enough,  here  is  a petitioner  with  conceded  rights,  and  no 
remedy  except  such  as  it  shall  receive  at  your  hands.  W ell, 
that  is  a very  anomalous  state  of  things,  but  the  record  shows 
how  it  has  come  about.  The  right  was  accorded  to  us  by  the- 
act  of  the  State,  the  contract  of  the  State,  and  the  same  con- 
tract promised  us  a remedy,  because  it  says  in  the  second 
section  that  we  shall  have  the  right  of  redemption,  which 
means  the  right  to  redeem  by  law.  Well,  like  a great  many 
other  rights  whose  enjoyment  depends  on  governmental  action, 
the  act,  while  it  promised  us  a remedy,  failed,  as  it  turns  out, 
to  provide  for  it ; and  so  it  was  like  many  a claim  that  is 
admitted  but  must  remain  uncared  for  until  there  is  an 
appropriation  to  meet  it. 

I say  that  the  act  of  1862  promised  a remedy  in  plain  terms 
but  did  not  provide  it ; and  yet  everybody  who  knew  anything 
of  the  subject  in  1862,  supposed  that  those  words  by  which  it 
promised  it,  when  taken  in  connection  with  the  general  acts 
of  the  State  vesting  general  jurisdiction  in  law  and  equity  in 
the  Supreme  Court,  did  also  provide  the  remedy  as  promised. 
But  in  1878,  when  this  petitioner  filed  its  bill  in  the  Supreme 
Court  on  the  strength  of  this  supposition,  which  had  been  con- 
curred in  not  only  by  the  executive  officers  of  the  State  and 
by  the  Legislature,  as  we  may  fairly  believe  at  the  time  they 
passed  the  act  of  1862,  but  also,  as  Mr.  Gooch  has  shown,  by 
the  law  officers  of  the  government  from  that  time  to  this,  and 
by  the  learned  counsel  whose  opinions  they  took,  although  it 
had  been  supposed  to  exist,  it  was  found  out  when  brought  to- 


55 


the  test  that  it  did  not  exist,  and  that  no  act  had  been  passed 
to  provide  this  remedy  which  had  been  promised. 

The  equity  of  our  case  thus  lies  in  a nut-shell : — 

In  1862  the  Commonwealth  of  Massachusetts  induced  the 
railroad  company  to  surrender  to  it  all  its  property,  and  all 
its  franchises,  in  order  that  the  tunnel  might  be  completed — in 
reliance  upon  the  covenant  of  the  Commonwealth,  expressed 
in  the  most  solemn  form  by  statute — that  the  right  of  redemp- 
tion shall  not  be  barred  until  ten  years  after  the  completion  of 
the  tunnel.  In  1878,  within  two  years  after  that  event,  the 
Supreme  Court  decides  that  the  right  is  barred  by  the  refusal 
or  failure  of  the  Commonwealth  to  submit  itself  to  the  juris- 
diction of  any  court,  so  as  to  allow  the  right  to  be  adjudicated. 
Until  the  bar  so  created  is  removed,  then,  by  the  uncondi- 
tional submission  of  the  Commonwealth  to  the  jurisdiction  of 
some  court  competent  to  determine  its  rights  and  those  of  the 
company  as  they  now  exist,  the  promise  of  the  Common- 
wealth is  not  fulfilled.  And  so  we  are  here  on  the  part  of  the 
company,  asking  simply  that  this  may  be  done — asking  for 
no  favor,  no  privilege — simply  for  our  right,  that  this  bar  to 
our  right  of  redemption,  which  the  State  thus  promised,  should 
not  stand  in  our  way,  but  which  is  thus  found  by  the  default 
of  the  State  to  stand  there,  may  be  removed. 

Now  it  is  wholly  independent  of  the  question  what  our  rights 
are  worth,  or  whether  they  are  worth  anything,  it  being  con- 
ceded that  we  have  a right  to  assert,  and  have  been  promised 
a remedy,  and  have  failed  of  it  by  this  misadventure,  which 
was  no  fault  of  ours,  but  only  and  wholly  the  fault,  thus  far 
at  any  rate,  of  the  State.  We  are  driven  to  the  Legislature  as 
petitioners  to  ask  that  the  State  shall  do  what  all  enlightened 
governments  have  cheerfully  at  all  times  consented  to  do,  and 
what  all  the  recognized  rules  of  the  administration  of  justice 
as  between  governments  and  subjects,  whether  they  are  repub- 
lican, monarchical,  or  despotic,  concede  to  be  the  duty  of  a 
government,  namely,  where  there  is  a conceded  right  to  afford 
in  the  courts  of  the  government  a remedy.  I will  not  enlarge 
upon  that  suggestion,  because  we  state  it  as  a settled  principle 
of  enlightened  government  that  where  there  is  a subject  with 
a right  against  the  sovereign,  no  matter  what  the  character  of 


56 


that  sovereign  or  government  may  be,  its  duty  is  to  give  that 
subject  a remedy,  and  one  co-extensive  with  the  right  in  some 
proper  court,  before  some  proper  tribunal,  in  law  or  equity, 
that  may  be  competent  to  pass  upon  it. 

And  that  is  especially  so  where  the  rights  claimed  and  the 
rights  conceded,  whatever  may  be  their  extent,  depend  upon  a 
contract  between  the  sovereign  and  the  citizen  or  the  subject. 
I can  well  understand  that  if  our  rights  did  not  stand  on  con- 
tract, there  might  be  a reasonable  objection  on  the  part  of  the 
sovereign  to  vesting  in  any  tribunal  jurisdiction  over  it.  If, 
for  instance,  we  had  an  uu  liquidated  claim  for  damages  grow- 
ing out  of  some  misfortune  of  the  State,  if  you  please,  that 
had  happened,  on  which  there  was  liability  charged  upon  the 
State,  unliquidated,  so  that  it  might  be  dependiug  upon  the 
whim  or  caprice  of  the  tribunal  that  might  be  selected — a jury, 
for  instance — it  might  be  not  only  natural  but  reasonable  for 
the  sovereign  to  hesitate  before  submitting  such  a claim  to  such 
a tribunal.  But  where  the  right  rests  upon  an  acknowledged 
contract,  and  must  necessarily  be  measured  by  settled  prin- 
ciples of  law  and  of  equity,  what  reason  can  be  suggested  why  a 
remedy  should  not  be  afforded  co-extensive  with  the  right  ? And 
so  our  petition,  which  is  only  for  that — to  provide  the  remedy 
which  has  been  promised  to  us  by  the  act  of  1862,  under  which 
we  surrendered  our  property — has  been  referred  to  this  Com- 
mittee to  dispose  of  on  principle ; of  course  upon  the  principle 
of  justice  to  both  parties — justice  to  this  helpless  party,  whose 
whole  existence,  as  Mr.  Attorney- General  has  said,  seems  to 
have  been  absorbed  under  the  act  of  1862,  and  resumed  by  the 
State,  as  well  as  justice  to  the  all-powerful  sovereign  with 
whom  we  are  here  contending ; and  this  Committee  is,  for  the 
time  being,  vested  with  the  keeping  of  the  conscience  of  the 
State,  and  it  is  to  that  that  we  appeal  to  give  us  justice,  and 
to  give  us  no  more  than  j ustice. 

Well,  that  is  the  situation;  that  is  the  question  submitted 
to  you,  whether  it  is  right  that  we  should  have  a chance  to 
present  and  have  determined  the  question  of  our  rights  by  a 
competent  tribunal.  Now  there  are  three  ways,  and  only 
three  that  I know  of,  in  which  that  question  can  be  disposed 
of,  and  one  or  the  other  of  those  three  alternatives — if  I may 


57 


say  three  alternatives — must  be  finally  adopted  by  this  Com- 
mittee. In  the  first  place  you  may,  if  you  please,  let  the 
matter  alone;  you  may  serve  the  office  of  so  many  legislative 
committees  that  have  sat  in  this  building,  I suppose,  as  in  all 
other  State-houses  and  capitols ; you  may  smother  the  question 
entirely,  and  do  as  your  predecessors  did,  postpone  it  to  the 
next  legislature. 

That  is  the  way  in  which  a great  many  important  questions 
are  disposed  of,  and  a great  many  urgent  and  pressing  rights 
are  suppressed  for  the  time  being,  but  I do  not  believe  that 
this  Committee,  giving  the  earnest  attention  to  it  which  they 
have  manifested  to-day,  will  be  content  so  to  dispose  of  it,  or  that 
the  Legislature  will  be  willing  to  go  back  to  its  constituents 
in  any  or  all  parts  of  the  State,  leaving  this  matter  unsettled 
or  undisposed  of.  So  I leave  that  out  as  an  impossible  alter- 
native. 

Then  there  are  two  other  ways,  one  or  the  other  of  which 
you  must  determine  upon : either  to  remit  this  question  of  our 
rights  as  they  now  stand  to  the  proper  tribunal,  which  as  we 
claim  is  capable  of  deciding  it,  and  should  be  trusted  to  decide 
it,  namely,  the  Supreme  Court,  which  is  deemed  by  the  people 
not  only  of  this  State,  but  of  the  whole  country,  a perfectly 
satisfactory  and  competent  tribunal  to  pass  upon  any  question 
of  law  or  equity  between  any  suitors  of  any  grade  or  degree 
whatsoever;  or  else  you  must  adopt  what  you  are  urged  by 
the  Attorney-General  to  adopt,  namely,  a bill  which  shall  deny 
us  that  right,  and  which  shall  submit  it  to  the  Supreme  Court, 
if  you  please,  or  some  other  tribunal,  not  according  to  our 
existing  rights  and  the  existing  rights  of  the  State,  but  accord- 
ing to  new  terms  and  new  conditions  to  be  imposed  at  the  will 
of  one  of  the  parties,  to  wit,  the  State,  without  the  consent  of 
the  other,  and  against  its  rights. 

Let  me  enlarge  upon  that  idea  somewhat.  W e have  certain 
rights.  They  depend  upon  all  the  acts  of  both  parties  in  the 
past,  and  upon  all  their  contracts  and  all  the  legislation,  all 
that  they  have  done  and  left  undone ; and  at  this  moment  are 
capable  of  solution  upon  settled  principles  of  law  and  equity. 
If,  as  I shall  presently  attempt  to  show  you,  you  refer  them  to 
the  Supreme  Court  to  hear  and  determine  according  to  those 


58 


principles,  they  will  be  adjusted  rightfully  according  to  all 
that  has  heretofore  passed  between  the  parties,  and  no  man 
can  say  when  their  decision  shall  be  received  and  acted  upon 
that  injustice  has  been  done  to  either  party,  and  no  man  ever 
will  say  that.  That  is  one  thing  to  do  with  this  case.  But  if 
you  refuse  that,  conceding  that  we  have  a right  founded  upon 
contract  that  is  capable  of  being  determined,  and  you  say  that 
it  can  only  be  settled  by  passing  a new  law  imposing  new 
terms,  what  do  you  do  then  ? Why,  you  pass  a law  for  the 
express  and  avowed  purpose  of  impairing  the  obligation  of  a 
conceded  contract  as  it  stands.  I understand  the  learned 
Attorney-General  to  go  to  that  extent.  “ It  may  be  that  we 
have  no  defense  to  your  claim  on  the  facts  as  they  now  exist, 
and  we  will  not  submit  it  to  the  Supreme  Court  to  be  deter- 
mined upon  those  facts,  because  we  are  apprehensive  they  will 
decide  in  your  favor,  and  therefore  we  insist  that  it  shall  go  to 
that  court  under  a limited  jurisdiction  to  give  you  a remedy 
shorter  than  your  right,  i.  e.,  to  take  away  some  of  your  rights 
and  impair  our  conceded  obligations.” 

Now,  that  is  the  way  the  case  strikes  me  as  the  real  ques- 
tion for  this  Committee  to  determine,  and  if  that  be  so,  then 
the  discussion  which  has  been  had  of  the  merits,  however  in- 
teresting and  instructive  it  may  be,  for  the  purpose  of  enabling 
the  Committee  to  pass  upon  this  particular  question  that  is  re- 
ferred to  it,  is  not  entirely  to  the  point  of  the  ultimate  question 
to  be  determined  here.  I want  to  repeat  once  more  what  I 
understand  to  be  the  nature  of  our  rights  as  we  claim  them, 
as  they  stand  to-day.  We  say  that  our  company  long  before 
1862,  was  vested  with  these  valuable  franchises,  with  the 
property  which  was  subsequently  mortgaged  to  the  Common- 
wealth, with  the  right  to  build  and  construct  that  railroad. 
By  subsequent  acts  of  the  State,  and  by  aid  of  the  State,  gen- 
erously granted  for  the  purpose  of  building  a tunnel  through 
the  Hoosac  Mountain  and  completing  the  road,  they  became 
entitled  to  loans  from  the  State,  which  should  ultimately  reach 
the  sum  of  $2,000,000,  and  the  State  became  by  mortgage 
vested  with  a lien  upon  the  entire  property  for  that  amount. 
I will  not  recite  what  passed  prior  to  the  passage  of  the  act 
of  1862,  except  presently  for  a single  moment,  and  for  a def- 


59 


inite  object.  The  act  of  1862  is  the  chart  that  must  guide 
the  final  determination  of  this  question  by  any  tribunal, 
whether  legislative  or  judicial,  that  looks  into  it.  The  mort- 
gages that  went  before,  the  learned  Attorney -General  said, 
determined  the  matter.  Not  without  the  act.  The  act,  because 
it  embodies  and  refers  to  the  mortgages,  necessarily  covers  the 
whole  ground.  Now,  what  is  provided  by  the  act  ? Why, 
that  the  Troy  and  Greenfield  Railroad  Company,  upon  the 
invitation  of  the  State,  without  any  default  having  been  com- 
mitted on  its  part,  did  surrender  all  its  property  and  its  fran- 
chises to  the  State,  upon  the  contract  set  forth  in  that  act, 
which  provided,  briefly  stated,  that  the  State  should  in  its 
own  way,  with  whatever  changes  it  saw  fit  to  make,  complete 
that  road  and  construct  that  tunnel,  but  that  the  right  of  re- 
demption under  the  mortgage  and  the  act  together  should  ex- 
tend till  ten  years  after  the  road  was  completed  and  fit  for  use, 
and  that  although  the  State  might  spend  ad  libitum  in  its  dis- 
cretion, or  according  to  its  caprice  or  the  caprice  of  its  legis- 
lators or  its  engineers,  upon  the  building  of  the  road  in  its 
own  fashion,  yet,  that  when  the  time  for  redemption  came, 
no  more  than  the  original  $2,000,000  should  be  exacted  from 
this  company  as  the  condition  of  redemption. 

Let  me  read  that  proviso  again,  for  it  is  the  key  to  this  whole 
question.  I mean  the  question  that  has  got  to  be  decided  by 
some  tribunal  or  other,  and  I will  read  it  from  page  11  of  Mr. 
Gooch’s  brief : “ Provided,  that  all  expenditures  and  advances 
made  under  and  by  virtue  of  this  act  shall  be  on  account  and 
form  part  of  the  $2,000,000  authorized  to  be  loaned  in  State 
scrip  to  the  Troy  and  Greenfield  Railroad  Company,  by  chap- 
ter 226  of  the  Acts  of  1854,  and  said  expenditures  and 
advances,  together  with  all  sums  hitherto  advanced  to  said 
company,  excepting  the  sums  advanced  on  account  of  the 
‘Southern  Vermont  Railroad’  shall  not  exceed  in  amount  the 
said  $ 2,000,000 .” 

It  is  a well-settled  rule  of  construction  that  all  the  parts  of 
an  act  are  to  be  taken  together,  and  when  you  find  the  second 
section  giving  the  right  of  redemption,  when  you  find  the  first 
and  one  of  the  concluding  sections  giving  the  right  to  the 
State  to  go  on  and  build  the  road  and  tunnel  in  its  own  way. 


60 


without  instructions  from  the  company,  and  then  “provided  ” 
— that  is  a proviso  upon  the  whole  act,  and  means  what  it  says 
— that  when  the  time  for  redemption  comes,  whatever  may 
have  been  done  or  lost,  no  more  than  the  original  $2,000,000 
shall  be  charged  to  the  account  of  the  company,  and  that  on 
these  terms  and  no  others,  the  company  shall  have  the  right  to 
redeem.  Now,  I ask  this  learned  Committee  to  consider,  and 
being  all  lawyers  they  can  all  follow  me  without  the  least 
doubt  or  difficulty,  to  consider  the  future  course  of  events  in 
the  disposition  of  this  question,  if  the  alternative  that  we  insist 
upon,  namely,  the  plain  submission  of  our  rights,  and  the 
State’s  rights  as  they  now  stand  to  be  determined  by  the 
Supreme  Court,  shall  be  adopted.  The  hesitation  of  the 
learned  Attorney- General  to  send  the  case  before  that  court 
seems  to  us  to  indicate  one  of  two  things,  the  case  being  of  the 
nature  that  I have  pointed  out.  It  is  a distrust  on  his  part. 
Is  it  a distrust  of  the  court  to  which  it  is  proposed  to  send  it  ? 
Or  is  it  a distrust  of  the  Commonwealth’s  case  that  is  to  be  sub- 
mitted, or  that  is  proposed  to  be  submitted  to  that  court  ? If 
the  State  has  as  good  a case  as  he  believes,  why  we  have  to  go 
before  that  court  only  to  be  dismissed  with  costs,  and  it  is  not 
under  the  dome  of  this  Capitol,  I am  sure,  that  we  shall  ever 
hear  any  suggestion  of  doubt  or  distrust  in  regard  to  the 
Supreme  Judicial  Court  of  Massachusetts. 

Well,  now,  we  will  suppose  that  we  have  got  into  that 
court,  and  the  learned  Attorney- General  appears  there  and 
presents  the  views  that  he  presented  here  this  morning. 
What  I ask  this  Committee  to  consider  is  whether  there  is 
anything  in  them,  not  of  merit  or  of  substance — I will  con- 
cede that  they  are  all  meritorious  and  all  sound,  for  the  sake 
of  argument — is  there  anything  in  them  that  the  Supreme 
Court  is  not  entirely  capable  of  disposing  of,  and  is  there  any 
reason  why  it  is  not  the  most  proper  tribunal  in  this  country 
to  which  they  should  be  submitted  ? Take,  for  instance,  the 
first  point  with  which  he  set  out,  namely,  what  is  the  stand- 
ard for  determining  our  rights  ? He  says  that  we  claim  it  is 
the  Act  of  1862  and  that  act  only,  and  he  claims  it  is  the 
mortgages  and  the  mortgages  only.  W ell,  gentlemen,  whether 
our  rights  depend  upon  the  act  or  upon  the  mortgages,  or  the 


61 


combined  effect  of  both  together,  and  of  all  subsequent  events,, 
of  all  things  that  have  been  done  since  or  omitted  to  be  done, 
that  is  the  question.  Is  that  a judicial  question  or  a legisla- 
tive question  ? Does  it  require  any  new  act  except  the  giving 
of  jurisdiction,  does  it  require  the  imposing  of  any  new  terms 
or  conditions,  to  enable  the  Supreme  Court  to  say  what  is  the 
proper  standard  by  which  to  measure  our  rights?  Well, 
then,  in  pursuance  of  his  suggestion  that  the  mortgages,  with- 
out the  Act  of  1862,  are  the  measure  of  our  rights,  he  inti- 
mates that  the  corporation  was  guilty  of  some  default  before 
the  passage  of  the  act.  And  although  I deem  that  an  utterly 
immaterial  question,  yet  it  is  a question  which  I am  now  ask- 
ing you  to  consider  as  one  proper  to  be  submitted  to  the 
Supreme  Court.  If  it  is  true,  as  the  learned  Attorney-Gene- 
ral says,  that  we  made  defaults  prior  to  1862,  which  cannot 
now  be  compensated  for  by  money — what  they  are  we  never 
heard  of,  they  have  never  been  more  than  covertly  suggested 
— but  if  that  be  true,  and  if  it  cuts  off  our  right  of  redemp- 
tion, cannot  the  Supreme  Court  so  say  ? But  we  claim,  if 
the  Committee  please,  that  it  is  proved  upon  the  record  here, 
beyond  all  possibility  of  further  question,  that  there  was  no 
default  upon  the  part  of  this  railroad  company  prior  to  the 
Act  of  1862.  If  there  were,  it  would  be  wholly  immaterial  in 
view  of  the  provisions  of  that  act,  by  which  the  surrender 
was  accepted  on  terms  embodied  in  it ; wholly  immaterial. 

But  what  are  the  facts  as  they  stand  here  ? Why,  the  work 
was  suspended  in  the  month  of  July,  1861.  In  December  of 
the  same  year,  the  Governor’s  Council,  by  an  unanimous  vote 
in  writing,  recorded  their  protest  against  a decision  of  his  to 
that  effect,  and  solemnly  declared  that  there  had  been  no  de- 
fault on  the  part  of  the  company,  and  that  the  suspension  had 
been  brought  about  by  a misunderstanding  on  the  part  of  the 
engineers  of  the  State  as  to  their  duty ; and  in  the  month  of 
March  following,  you  have  the  report  of  the  joint  committee 
of  the  two  houses,  three  gentlemen  of  the  Senate  and  seven 
gentlemen  of  the  House,  all  of  them  unanimously  reporting  to 
the  same  effect.  But  whether  that  be  so  or  not,  assuming  that 
you  can  go  behind  the  protest  of  the  Council  and  the  report 
of  the  joint  committee,  and  everything  that  was  said  am  I done 


62 


in  those  days  to  discover  defaults  of  the  company,  if  any  there 
were,  what  is  the  proper  tribunal  to  try  that  question  ? A 
legislative  committee,  or  the  Supreme  Court  of  the  State  ? I 
say,  then,  that  that  court,  on  this  first  question  that  was  raised, 
is  the  true  and  only  proper  tribunal  in  the  first  place  to  deter- 
mine what  is  the  standard  of  our  rights  by  which  they  are  to 
be  measured,  and  what  is  the  fact  as  to  alleged  defaults,  if 
they  are  alleged,  and  what  is  the  legal  consequence  upon  our 
rights  and  the  rights  of  the  State  of  any  such  defaults. 

But  you  will  observe  that  the  Act  of  1862  was  passed  after 
all  the  mortgages  were  made,  and  all  possible  defaults  had 
been  committed.  The  learned  Attorney-General’s  idea,  that 
there  was  a mortgage  subsequent  to  the  act,  failed  on  examina- 
tion by  the  Committee.  It  was  after  all  mortgages  and  all 
possibility  of  making  default  that  the  promise  of  the  State, 
on  which  we  rely,  was  given,  because  after  the  passage  of  that 
act  and  the  surrender  that  took  place  thereunder,  the  com- 
pany was  absolutely  powerless  for  good  or  for  evil.  You  must 
have  observed  the  effect  on  the  part  of  the  counsel  of  the 
State  to  have  our  rights  determined  as  if  the  Act  of  1862  had 
not  been  passed.  Well,  suppose  you  are,  as  he  would  have  it, 
to  strike  out  the  Act  of  1862,  on  which  we  rely  so  much,  then 
would  there  be  any  lack  of  reason  or  propriety  in  sending  this 
case  to  be  determined  by  the  Supreme  Court  ? 

But  now  to  proceed  with  his  other  objections.  He  says  that 
we  are  claiming  to  redeem  the  tunnel,  which  was  not  created 
at  the  time  of  the  mortgage  or  of  the  act.  Well,  in  a certain 
sense  that  is  true,  but  it  is  in  no  other  sense  true  than  it  would 
be  if  a man  having  dug  the  cellar  of  his  house,  of  his  pro- 
posed mansion,  mortgaged  the  lot  and  the  house  that  was  to 
be  erected  upon  it  for  the  purpose  of  raising  means  to  build 
it.  What  are  the  facts  ? What  is  the  history  of  these  mort- 
gages and  of  this  act?  What  were  they  for?  What  was  the 
object  of  the  Legislature  in  passing  them?  Why,  it  all 
appears  upon  the  title  and  the  face  of  the  acts  themselves. 
It  was  to  enable  this  tunnel  to  be  built  and  the  railroad 
through  it  connecting  Troy  and  Greenfield,  to  be  completed  ; 
a great  object  as  was  then  thought,  and  I believe  as  is  now 
realized,  for  the  whole  State.  It  was  in  its  infancy.  Every 


63 


railroad  built  in  recent  years  in  this  whole  broad  country  is  in 
its  infancy,  when  a mortgage  is  placed  upon  it  to  provide 
means  for  building  it.  It  is  an  unfortunate  system  we  have 
got  into  of  building  great  public  works.  But  who  ever  heard 
before  as  an  answer  to  a claim  of  right  under  a mortgage  or 
under  an  act  which  embodied  a mortgage,  that  when  the  mort- 
gage was  put  upon  it  there  was  no  tunnel,  no  railroad,  no  build- 
ing yet  there  ? Why,  of  course  that  was  what  was  assumed  in 
making  the  mortgage ; that  was  what  was  assumed  in  this  Act 
of  1862.  It  was  for  that  very  reason  that  the  acts  were  passed 
and  the  mortgages  made.  What  did  the  Legislature  call  it  ? 
“ An  Act  for  the  more  speedy  completion  of  the  Hoosac  Tun- 
nel and  the  Troy  and  Greenfield  Railroad ; ” and  the  very  first 
section  in  it  provides  that  commissioners  shall  be  appointed 
to  see  how  best  this  tunnel  can  be  built.  Well,  we  are  not 
afraid  of  that  question  to  be  decided  by  any  tribunal ; but 
what  is  there  in  it  that  is  not  capable  of  being  determined  by 
the  same  settled  principles  of  law  or  equity  applicable  to  the 
facts  of  the  case  when  they  are  agreed  or  proven  ? I am 
asking  you  to  consider  what  if  you  grant  our  alternative,  be- 
cause by-and-by  will  come  the  contrast  to  what  will  be  if  you 
refuse  it.  The  learned  Attorney- General  says : — “ Why,  you 
mortgaged  the  property  that  you  then  had,  and  you  did  not 
have  this  tunnel  at  that  time.”  Well,  that  is  the  same  idea, 
expressed  in  other  form,  that  I have  already  treated  upon. 

Now,  he  comes  to  another  question,  and  the  Committee  will 
see  that  I am  not  trying  to  discuss  upon  their  merits  all  these 
various  questions  which  he  has  suggested.  I am  trying  to 
help  the  Committee  to  determine  what  sort  of  questions  are  to 
be  determined,  and  what  is  the  proper  tribunal  for  their  de- 
cision. 

The  Attorney-General  says  that  the  great  error  on  our  part 
is  that  the  company  comes  after  many  years  of  silence  and 
asks  for  all  that  the  State,  by  immense  expenditures  of  its  own 
means,  has  built  since  it  took  possession,  and  asks  that  on  pay- 
ment of  a pittance  of  $2,000,000  and  interest  it  shall  be  put 
in  possession  of  the  whole ; that  it  asks  all  these  great  things 
in  return  for  the  little  things  that  it  gave  up.  Well,  now,  that 
might  be  so.  I mean  to  say  that  might  constitute  an  answer 


64 


to  our  claim,  although  on  any  known  principles  of  law  or 
equity  we  can  not  see  how  it  does.  Now,  what  does  that 
amount  to  as  a defense,  as  a plea,  as  an  answer  to  our  claims  ? 
One  of  the  learned  members  of  the  Committee  asked  : — “ Did 
not  this  company  allow  this  great  work  to  be  done  without  a 
protest?”  And  another  asked,  “Did  it  not  have  entire  cog- 
nizance through  its  officers  of  what  was  being  done  at  the 
time,  and  did  it  not  silently  acquiesce  ? ” Well,  it  may  possibly 
be  that  ingenious  theories  of  law  may  be  applied  to  these 
facts,  which  will  constitute  them  a defense  on  the  part  of  the 
State  ; although  how,  under  the  provisions  of  the  Act  of  1862, 
which  is  our  contract,  any  such  result  can  follow,  we  can  not 
begin  to  conceive.  The  mortgagor  having  got  into  difficulties, 
the  mortgagee  says : — “Oh,  you  are  not  strong  enough  to  finish 
this  work ; let  me  go  into  possession  and  finish  it ; I have 
ulterior  purposes  of  my  own  in  regard  to  it,  beyond  the  mere 
finishing  of  it ; I will  take  it  into  my  possession  and  complete 
the  work,  but  that  shall  not  interfere  with  your  right  of  re- 
demption, which  shall  last  ten  years  after  it  is  finished,  and 
you  shall  have  it  on  payment  of  $2,000,000  and  interest.” 
Now  if  that  was  the  contract,  as  we  claim,  how  could  silence 
or  acquiescence  affect  it?  Why,  we  had  agreed  to  acquiesce, 
had  we  not?  This  is  in  the  Act  of  1862.  We  had  given  to 
the  Commonwealth  full  and  complete  liberty ; we  even  sur- 
rendered our  own  existence,  for  the  time  being,  to  the  State, 
as  well  as  all  our  property,  and  the  right  to  use  it  as  the 
Commonwealth  willed  ; we  had  agreed  to  be  silent  and  not  to 
protest,  and  to  protest  would  have  been  a mere  impertinence 
on  our  part.  That  is,  at  any  rate,  in  general  terms  the  view 
we  take  of  it.  Now  suppose  this  matter  is  submitted  to  the 
Supreme  Court  to  determine,  as  it  usually  determines  questions 
between  suitors  on  principles  of  law  and  equity ; is  there  any- 
thing in  it  that  can  not  be  solved  by  those  principles  ? Is  it 
necessary  to  pass  a new  law  defining  and  limiting  and  taking 
away  a part  of  our  rights,  a law  made  by  one  of  two  parties 
at  the  expense  of  the  other,  when  you  have  a tribunal  by 
sending  it  to  which  all  these  questions  affecting  our  rights  and 
those  of  the  State  can  be  readily  adjusted  ? I submit  that  it 
is  not. 


65 


The  learned  Attorney-General  has  raised  another  legal  ques- 
tion, although  a novel  one — I do  not  believe  that  in  the  records 
of  the  Supreme  Judicial  Court  he  found  any  suggestion  of  it — 
namely,  he  says  it  may  be,  and  I do  not  understand  the  At- 
torney-General to  urge  this  on  the  responsibility  of  his  official 
or  professional  opinion,  but  he  says  it  may  be  because  we  have 
suffered  the  State  to  go  on  with  the  work  beyond  the  point  at 
which  we  could  distinguish  what  we  had  mortgaged  to  them 
from  what  was  created  by  the  State  subsequently  to  the  sur- 
render, our  right  of  redemption  has  gone,  and  that  a new  right 
has  sprung  up  in  its  place,  namely,  a right  of  compensation 
on  some  unknown  principles  of  equity.  Well,  I agree  with 
him  that  it  may  be.  Legal  miracles  are  always  possible. 
That  may  be,  but  if  an  opportunity  is  to  be  given  to  any  tri- 
bunal to  perform  such  a judicial  miracle  as  that,  I suggest 
that  the  Supreme  Judicial  Court  of  Massachusetts  is  still 
competent  for  the  task.  It  is  possible,  at  any  rate,  they  can 
hear  such  a claim  argued  on  the  part  of  the  State,  and  they 
can  be  trusted  to  determine  it.  It  is  a very  novel  idea  ; it  is 
mixing  up  the  claims  of  parties  arising  and  defined  by  con- 
tract with  the  old  notions  of  a wrong-doer  confusing  the  goods 
of  another  with  his  own,  when  the  penalty  was  that  if  thereby 
they  could  not  be  distinguished,  the  innocent  sufferer  should 
take  the  whole,  and  the  wrong-doer  should  lose  the  whole. 
That  is  the  only  thing  that  could  be  pointed  to  as  an  analo- 
gous illustration  of  the  principle.  Whose  fault  was  it  that  the 
identity  was  lost  ? Whose  fault  was  it  that  instead  of  a four- 
teen-foot tunnel  this  great  tunnel  was  projected  and  created? 
The  State  took  the  road  by  the  terms  of  the  contract  to  do 
just  that  thing  if  it  pleased,  to  do  anything  that  it  pleased 
— and  yet  it  says,  “Oh ! well,  you  should  have  protested  when 
we  were  proceeding  to  do  it.  You  should  not  have  allowed 
the  identity  of  your  plan  to  be  lost  in  our  greater  plan ! ” 
Well,  how  could  we  help  it? 

Now,  let  me  read  to  you  two  more  propositions  of  the  learned 
Attorney-General,  which  express  the  idea  certainly  in  a very 
intelligible  form.  He  says  that  “ if  an  imperfect  thing  is 
mortgaged  to  be  completed  by  the  mortgagee,  the  mortgagor 
should,  on  redemption,  pay  the  necessary  cost.”  Well,  that 


66 


may  be  so  as  a principle  of  equity  between  mortgagor  and 
mortgagee,  unaffected  by  any  subsequent  agreement — it  proba- 
bly would  not  be  contested — but  how  if  the  parties  have  agreed 
as  we  claim  they  have  agreed,  that  whatever  might  be  the 
necessary  cost,  the  mortgagor  on  redemption  should  pay  no 
more  than  a certain  agreed  sum  ? There  may  be  nothing  in 
our  claim,  but  still  we  do  so  claim.  How  if  they  have  agreed 
that  if  you  spend  more  than  the  amount  named  in  the  mort- 
gage, still  nothing  beyond  that  amount  shall  be  charged  to  the 
mortgagor  ? What  then  becomes  of  this  principle  that  “ if 
an  imperfect  thing  is  mortgaged  to  be  completed  by  the  mort- 
gagee, the  mortgagor  should,  on  redemption,  pay  the  necessary 
cost”? 

Another  thing ! Another  form  of  the  same  favorite  idea 
which  constitutes  the  defense  of  the  State,  for  the  State  to  put 
on  the  defensive  so  long  as  it  keeps  us  out  of  any  court  that 
can  try  our  rights.  The  learned  Attorney-General  says  that  if 
in  constructing  the  tunnel  or  the  works  mortgaged,  by  growth 
in  the  science  of  engineering,  or  by  new  devices  introduced  in 
the  science  of  engineering,  it  is  thought  best  to  make  a differ- 
ent thing,  and  the  party  affected  lies  by  and  does  not  object, 
then  to  redeem  he  must  pay  the  cost  of  the  better  thing,  less 
the  unnecessary  waste,  or  what  might  properly  be  called  waste, 
as  it  was  viewed  at  the  time  the  work  was  done.  W ell,  if  we 
were  in  a court  of  law  I would  challenge  the  learned  Attorney- 
General  to  produce  an  authority  for  that  proposition. 

Attorney-General  Marston  : — There  never  has  been 
a Hoosac  Tunnel  before. 

Mr.  Choate  : — But  suppose  that  is  so,  and  that  is  law, 
taking  the  mortgage  and  the  tunnel  together ; still  between  the 
mortgage  and  the  tunnel  lies  the  Act  of  1862,  and  what  says 
that  as  bearing  on  the  proposition  as  to  the  legal  consequences 
of  substituting  a new  thing  for  the  old,  and  the  party  lying  by  ? 
What  did  that  reservation  of  authority  to  make  any  changes 
by  the  State  mean  ? Why,  to  make  a new  thing  if  the  State 
so  willed  it.  What  did  the  surrender,  and  the  complete 
grant  by  the  company  to  the  State,  of  power  to  do  everything 
with  it  as  it  would  with  its  own,  mean  ? Why,  that  the  com- 
pany should  lie  by,  and  that  it  was  none  of  their  business  what 


67 


the  State  did,  provided  they  accomplished  a work  as  good  as 
that  which  was  projected  and  specified  before  the  Act  of  1862 
was  passed,  it  being  provided  (and  you  see  that  proviso  was 
put  in  after  the  bill  was  first  proposed,  and  the  surrender  was 
agreed  to  on  the  strength  of  the  terms  of  that  proviso),  that 
we  shall  have  the  right  to  redeem  for  ten  years  after  you  have 
got  through,  and  that  we  shall  only  be  charged  $2,000,000 
and  no  more,  whatever  you  may  do,  whatever  you  may 
spend  ? And,  as  Mr.  Gooch  has  shown,  it  was  perfectly  under- 
stood then  as  it  is  now,  that  as  railroad  property  it  would  not 
be  likely  to  be  worth  any  more  than  the  sum  limited  as  the 
condition  of  redemption. 

Well,  other  forms  of  expression  are  used.  The  learned 
Attorney-General  says,  “ Why,  no,  we  don’t  care  anything 
about  your  contract — what  your  rights  under  the  contract 
are ; but  when  you  come  to  ask  us  to  give  you  $20,- 
000,000  worth  of  property  for  $2,000,000,  we  won’t  do  it.” 
Well,  but  suppose  you  have  contracted  to?  Well,  he  says, 
the  whole  theory  of  his  position  is,  “ even  if  we  have  contracted 
to,  still  we  won’t  do  it.”  Yes,  the  Legislature  of  Massachu- 
setts may  take  that  position,  even  if  that  extreme  case  should 
come  before  them,  as  it  is  not  'now,  but  I believe  it  will  be 
a good  many  hundred  years  before  they  do  take  it.  The 
Commonwealth  has  gone  two  hundred  and  sixty  years  with- 
out passing  any  act  impairing  the  obligation  of  her  own  con- 
tracts willfully  and  knowingly.  But  that  case  is  not  here.  I 
know  that  $18,000,000  have  been  spent  out  there  in  the 
Hoosac  Tunnel  and  in  the  neighborhood,  but  upon  the  strength 
of  that  to  turn  round  and  say  to  us  that  it  is  worth  $18,000,000, 
or  $20,000,000,  why  we  might  as  well  say  that  the  sun  does 
not  shine  at  noonday  as  to  assert  a proposition  like  that ! It 
is  worth  something  for  railroad  purposes,  and  for  State  pur- 
poses; yes,  in  one  sense,  it  is  worth  more  than  $18,000,000. 
It  has  been  a favorite  idea,  preached  here  in  Boston  and 
throughout  all  the  borders  of  the  Bay  State,  that  the  opening 
of  the  Hoosac  Tunnel  was  vital  to  the  maintenance  of* the 
prestige  of  the  State  in  its  manly  struggle  for  commercial 
supremacy  with  its  rivals  in  other  quarters  of  the  Union. 
That  was  the  motive  that  pressed  the  great  work  through  in 


68 


spite  of  every  obstacle,  and  no  matter  what  money  was  spent, 
it  was  worth  it  all  to  Massachusetts,  and  even  though  a large 
proportionate  part  of  that  money  may  have  been  wasted  in 
the  great  effort.  But  as  a matter  of  value  as  a railroad,  you 
can  not  turn  round  upon  us  and  say,  “ Why  you  want  $18,000,- 

000  worth  of  property  for  $3,000,000.”  Already  it  has  been 
running  four  or  five  years,  and  the  best  that  can  be  demon- 
strated from  its  earnings  is  that  it  is  worth  a million  and  a half. 
But  the  Attorney-General  says : — “ W e are  going  to  put  a double 
track  through  there,  and  so  increase  the  earning  capacity.” 
Well,  double  it  if  you  please,  it  would  not  make  it  worth  more 
than  twice  as  much,  would  it  ? No  man  can  look  at  it  as  a rail- 
road property  in  a practical  business  view,  and  say  that  the 
sum  which  this  company  supposes  itself  liable  to  pay  under 
this  clause  of  redemption  is  not  fully  or  approximately  what  it 
is  worth  to-day,  or  what  it  will  be  worth  for  some  time  to  come, 
on  any  reasonable  estimate  of  improvement  in  its  earning 
capacity  in  the  near  future. 

I have  said  what  I have  said  by  way  of  enforcing  the  prop- 
osition I set  out  with,  and  so  far  as  I can  to  aid  the  Committee 
to  decide  which  of  the  two  alternatives  to  choose : to  send  it  to 
the  Supreme  Court,  or  to  pass  a new  law  whereby  the  existing 
rights  of  the  State  and  of  the  company  shall  be  altered. 

1 have  reviewed  all  the  learned  Attorney-General  has  said. 
Is  there  anything  in  it  that  is  not  capable  of  solution  on  well- 
settled  principles  of  law  or  equity  ? Not  one.  Not  a question 
of  fact,  of  law,  or  of  right.  It  is  simply  a case  of  contract, 
and  nothing  but  contract.  We  may  be  all  wrong  in  our 
assertions  and  opinions  about  the  contract  and  as  to  the  extent 
of  our  rights  under  it ; it  may  not  mean  what  we  say ; we  may 
have  violated  it  or  forfeited  it  a thousand  times  ; but  the  claim 
is  one  upon  contract  that  is  capable  of  being  clearly  adjudi- 
cated upon  the  facts  as  they  stand,  and  can  be  proved  as 
every  other  claim  on  contract  is,  and  if  you  send  it  to  the 
Supreme  Court  it  will  be  so  solved,  and  our  rights  will  be 
giv^n  to  us  by  the  court  and  the  State’s  rights  will  be  given 
to  it  by  the  court,  and  if  the  court  says,  “ You  must  pay  $18,- 
000,000  in  order  to  redeem,”  we  shall  have  the  option  to  do  it, 
or  to  abandon  all  further  claim  ; and  if  the  court  says,  “ You 


69 


are  to  pay  only  $3,000,000  or  $4,000,000  or  $5,000,000  to 
redeem,”  it  will  be  accepted  by  everybody,  because  everybody 
will  know  it  is  not  only  the  law  but  the  right.  Well,  now, 
why  not  send  it  to  the  court,  as  I said  before  ? If  you  have 
got  so  good  a case  as  you  think  you  have,  you  certainly  are  not 
afraid  of  the  court ; and  having  full  confidence  in  the  integ- 
rity and  capacity  of  the  court,  if  you  refuse  to  send  it  there  it 
must  be  that  you  do  not  believe  in  your  case. 

There  is,  as  I said  at  the  outset,  another  alternative  ; and 
that  is  to  pass  the  bill  which  was  proposed  last  year  to  do 
what  the  learned  Attorney-General  proposes  to  you  to-day ; 
and  now  what  is  that?  Not  to  pass  a bill  which  shall 
enable  this  question  to  be  determined  according  to  the 
rights  of  the  parties  as  they  are,  but  being  in  the  situation 
that  we  are,  a helpless  suitor  stripped  of  its  property 
by  reliance  on  the  good  faith  of  the  State,  out  in  the  cold  until 
the  State  shall  open  the  door,  and  on  the  other  side  this  all- 
powerful  sovereignty  of  Massachusetts,  it  is  to  say : — “ Why, 
yes,  we  will  let  you  into  court  on  certain  conditions  restricting 
the  jurisdiction ; that  is,  if  the  court  find  that  your  rights  are 
just  what  you  claim  them  to  be,  namely,  that  this  State  has 
contracted  with  you  to  surrender  that  property  as  it  is,  on 
payment  of  $2,000,000,  we  won’t  let  them  do  that ; they  must 
go  on  and  find  out  what  the  State  has  wisely  and  judiciously 
and  in  good  faith  spent  upon  it,  and  make  you  pay  that,  and 
every  dollar  of  it,  as  a new  condition  of  redemption.”  The 
proposition  assumes,  if  you  please,  that  it  may  be  that  we  are 
entitled  to  redeem  the  whole  property  on  payment  of  $2,000,000 
or  $3,000,000,  and  at  the  same  time  it  proposes  to  send  it  to 
the  Supreme  Court,  and  although  they  decide  that  is  our  right 
on  every  principle  of  law  and  equity  that  men  have  ever  acted 
upon  within  the  borders  of  the  State  of  Massachusetts  and 
everywhere  else,  yet  you  are  not  to  let  us  enter  into  the  prem- 
ises unless  we  will  pay  five  or  ten  or  fifteen  millions  of  dollars 
more.  So  we  come  asking  bread  from  a paternal  government, 
and  get  such  a stone  in  our  belly  as  that. 

Now,  the  proposition  of  the  Attorney-General  concedes  that 
the  law  may  be  as  we  state  it,  and  that  the  facts  may  be  as 
we  state  them.  Here  you  have  two  suitors — the  State,  and  the 


70 


poor  helpless  sufferer,  prostrate  in  the  dust,  stripped  years  ago 
of  its  property,  confiding  in  the  integrity,  not  the  generosity, 
of  the  State— we  do  not  ask  any  favors,  but  trust  in  the  integ- 
rity and  the  justice  of  this  good  old  Commonwealth — and  you 
say,  “ Yes,  we  will  go  into  court  with  you,  but  we  will  load  the 
scales  on  one  side,  and  we  will  put  the  State  of  Massachusetts  in 
there,  so  that  by  no  possibility  can  you  level  the  scale,  and  the 
court  cannot  help  you  ; we  won’t  let  them  level  the  scales  or  do 
even-handed  justice ; not  at  all.” 

Well,  this  is  an  assertion  of  a higher  law.  It  acts  upon  the 
idea  that  the  settled  principles  of  law  and  equity  which  time 
out  of  mind  have  been  sufficient  to  determine  the  rights  of 
private  suitors — yes,  of  all  suitors,  even  of  governments — are 
not  sufficient  for  this  case,  and  so  that  the  Commonwealth  may 
assert  a higher  law.  And  what  is  this  higher  law  ? Assume 
that  there  is  a contract ; that  our  rights  are  capable  of  being 
defined  under  it,  and  that  they  are  as  we  claim  them  to  be — 
what  is  this  higher  law?  We  have  all  learned  a higher  law 
in  old  times  in  this  Commonwealth.  We  learned  that  there 
was  a higher  law  of  conscience  and  of  justice  that  we  could 
appeal  to  against  that  of  the  statute-book  when  that  was  unjust 
or  wicked ; and  every  child  of  Massachusetts  learned  that  as 
part  of  his  Gospel.  But  this  higher  law  is  new  here,  and  it 
will  be  long,  I think,  before  it  will  receive  the  stamp  of  legis- 
lative sanction  ; namely,  that  if  the  State  has  made  a bad  bar- 
gain, if  you  please,  if  it  is  bound  by  contract  to  do  a certain 
thing,  it  will  not  do  it  because  it  is  to  its  hurt.  That  is  just 
the  proposition  which  the  learned  Attorney-General  will  suc- 
cessfully maintain  if  he  succeeds  in  inducing  you  to  pass  this 
bill  of  last  year.  It  is  asserting  the  higher  law  of  bad  faith — 
the  right  to  pass  laws  impairing  the  obligation  of  the  contracts 
of  the  Commonwealth.  It  is  asserting  a right  on  the  part  of 
the  Commonwealth  to  beat  their  adverse  suitors  on  execution 
when  judgment  has  gone  against  her.  It  is  the  same  right  that 
is  claimed  by  the  State  when  it  does  not  seem  fit  to  make  ap- 
propriations for  the  payment  of  its  bonds,  because  it  is  not 
convenient.  It  is  the  same  right  and  the  same  higher  law  of 
the  State  that  says  to  its  creditors,  “We  will  recognize  our 
obligations,  but  first  we  will  re- adjust  them ; ” and  so  the 


71 


learned  Attorney- General  did  actually  say.  If  that  is  so,  if 
you  have  got  the  right  by  law  and  equity  to  have  this  property 
that  has  cost  the  State  $20,000,000  for  $2,000,000  or  $3,000,- 
000,  “ we  propose  to  adjust  it  on  a different  basis.”  Those 
were  his  very  words. 

Now,  I do  not  believe  that  the  Legislature,  or  any  committee 
of  the  Legislature,  is  going  to  adopt  any  such  new  or  higher 
law  of  repudiation  as  this  would  be.  I mean  on  the  Attorney- 
General’s  theory  that  we  have  got  contract  rights  here,  that  a 
remedy  was  promised,  that  it  has  not  been  provided,  that  it 
ought  to  be  provided,  and  that  we  ought  to  be  enabled  to 
make  out  our  rights  as  we  claim  them.  Yet  nevertheless  he 
asks  you  in  the  name  and  as  the  representative  of  this  hon- 
orable Commonwealth  to  say  to  us,  “ You  shall  not  have  your 
rights  as  they  now  exist,  but  the  Supreme  Court,  on  any  bill 
we  will  send  them,  shall  add  as  a new  condition  of  redemption 
the  payment  of  five  or  ten  millions  of  dollars  that  you  do  not 
owe,  and  which,  on  your  contract,  ought  not  to  be  charged  to 
you.” 

I am  very  much  obliged  to  you,  gentlemen,  for  the  very 
earnest  attention  you  have  given  to  me.  I shall  rely  with 
perfect  confidence  that  you  will  not  give  this  matter  the  go- 
by ; that  you  will  not  send  this  matter  to  another  Legislature ; 
that  you  understand  it  and  are  perfectly  ready  to  pass  some 
bill  about  it ; and  that  you  will  not  pass  this  atrocious  bill  that 
has  been  proposed  by  the  Attorney-General.  I mean  atrocious 
in  the  sense  of  unjust — in  the  sense  of  a palpable  breach  of  the 
plighted  faith  of  a great  State. 

Mr.  McGeough: — It  would  be  some  satisfaction  to  the 
Committee  to  know  what  is  the  personal  ability  of  the  corpor- 
ation to  redeem  in  case  they  have  permission. 

Mr.  Choate  : — I suppose  that  will  depend,  if  the  Commit- 
tee please,  upon  the  burden  that  is  put  upon  the  property.  As 
I am  advised,  if  it  is  decided  that  in  order  to  redeem  this  property 
they  must  pay  all  that  the  Commonwealth  has  spent  upon  it, 
neither  they  nor  any  other  corporation  would  for  a moment 
entertain  the  idea.  If  it  is  decided  that  they  must  pay  what 
the  contract  requires  in  order  to  redeem,  I understand  there  is 
no  lack  of  ability  on  the  part  of  the  company  to  do  it. 


72 


Attorney-General  Marston: — I do  not  want  to  mis- 
understand you.  I didn’t  understand  you  to  say  that  they 
have  at  present  the  means  to  redeem. 

Mr.  Choate  : — At  present  our  property  is  all  in  your 
hands. 

Mr.  McGeough  : — Then  I understand  your  answer  to  be, 
that  if  you  have  the  right  to  redeem,  you  have  his  same 
property  to  look  to  for  the  means  of  redemption  ? 

Mr.  Choate: — We  should  have  this  property  to  look  to 
undoubtedly. 

Mr.  Muzzey  : — And  that  is  your  only  source  of  means  ? 

Mr.  Choate  : — I do  not  say  that,  but  this  corporation  sur- 
rendered all  its  property  under  this  Act  of  1862. 

Mr.  Muzzey: — I mean,  Mr.  Choate,  that  you  have  no 
other  property  outside  of  this  tunnel  property  ? 

Mr.  Choate  : — I think  the  Committee  need  have  no  fear 
about  the  ability  of  the  corporation  to  redeem  at  a proper 
figure. 

Mr.  Muzzey: — I would  like  to  ask  whether  this  whole 
matter  does  not  turn  upon  this,  whether  the  Legislature  shall 
not  put  the  State  of  Massachusetts  upon  the  same  plane  which 
any  citizen  occupies  toward  any  other  citizen  ? 

Mr.  Choate  : — That  is  it,  whether  this  suitor  shall  be  put  on 
the  same  basis,  with  regard  to  the  State  of  Massachusetts,  as 
if  Mr.  Vanderbilt,  or  any  other  citizen,  were  now  in  possession 
of  this  road  under  the  same  contracts,  the  same  statutes,  and 
the  same  facts  as  those  under  which  the  Commonwealth  now 
holds  the  possession. 


CLOSING  ARGUMENT  OF  ATTORNEY-GENERAL 
MARSTON. 


Mr.  Chairman  and  Gentlemen: 

I do  not  desire  to  detain  you  to  reiterate  what  I had  the 
honor  of  saying  this  morning.  We  have  discussed  partially 
all  the  questions  which  this  subject  presents,  and  to  under- 
take to  argue  them  in  detail  would  take  more  time  than  we 
have  at  our  command,  and  engross  too  much  the  attention  of 
the  Committee.  Considering  all  that  has  been  said  concerning 
repudiation,  I think  I may  thank  God  and  take  courage  that 
my  distinguished  friend  from  New  York  is  here  to-night, 
because  he  has  assured  us  that  he  never  could  come  to  Massa- 
chusetts again  if  an  act  of  repudiation  on  the  part  of  this  State 
should  take  place.  So  all  this  talk  about  repudiation  in  the 
past  may  go  for  nothing,  because  the  learned  counsel  is  here, 
and  in  the  same  cheerful  and  filial  frame  of  mind  towards  the 
State  of  Massachusetts  as  he  always  has  been,  and  no  act  of 
bad  faith  has  dishonored  us  yet;  and  if  anything  would  add 
to  the  force  of  the  argument  which  he  has  presented,  to  induce 
the  Committee  to  do  what  he  desires,  it  certainly  would  be  the 
fear  that  they  might  possibly  do  something  or  omit  to  do 
something  which  would  destroy  his  inclination  to  visit  us  as 
often  as  his  business  may  allow  him  to  leave  the  place  where 
he  spends  most  of  his  time.  But  I do  not  think  that  the 
finely  constructed  argument  of  the  learned  counsel  is  suffi- 
cient to  lead  us  away  from  certain  plain  propositions  which 
have  been  mentioned,  and  which  may  be  mentioned  again ; 
and  I do  not  think  that  this  Committee  is  to  be  deterred  from 
any  course  of  action  which  may  seem  proper,  because  he 
chooses  to  designate  the  bill  which  was  referred  to  this  Legis- 
lature by  the  legislature  of  last  year  as  atrocious.  It  was  a 
bill  that  the  Judiciary  Committee  of  the  Senate  of  last  year, 
after  a great  deal  of  deliberation  and  thought,  presented  to 
the  Legislature,  and,  in  so  doing,  I do  not  think  they  did  an 

(73) 


74 


atrocious  act.  It  is  a bill  that,  as  I understand  it,  did  not 
pass  the  Senate,  because,  among  other  reasons,  many  members 
found  that  it  was  altogether  too  liberal  in  its  terms  towards 
the  Troy  and  Greenfield  Railroad  Company.  It  is  a bill 
which,  if  it  is  atrocious,  receives  the  substantial  endorsement 
of  his  Excellency  the  Governor  in  what  he  has  said  upon  the 
subject,  and  which  is  directly  in  the  line  and  in  the  spirit  of 
what  this  bill  proposes.  I am  not  here  with  any  mere  pur- 
pose of  obstructing  the  course  of  justice  or  of  legislation,  as 
the  other  side  asserts,  but  because  I think  that  the  interests  of 
the  Commonwealth  and  its  treasury  require  that  they  should 
be  represented  somewhat  after  the  manner  in  which  I have 
undertaken  to  represent  them,  because  what  I undertake  to 
say  and  do  is  in  accord  with  the  bill  which  the  Judiciary 
Committee  of  the  Senate  of  last  year  proposed,  and  is  in  sub- 
stantial conformity  to  the  expressed  views  of  his  Excellency 
the  Governor ; and  I do  not  think  that  the  bill  proposed  in 
such  a way,  and  referred  by  the  Senate  of  1880  to  this  Legis- 
lature, and  supported  by  the  commendation  of  the  executive, 
should  be  designated  here  as  atrocious  or  as  wrong — I do  not 
care  about  that  particular  word  atrocious — as  essentially  wrong 
in  principle. 

I suppose  that  it  is  just,  Mr.  Chairman  and  Gentlemen,  that 
I should  speak  of  the  Troy  and  Greenfield  Railroad  Company 
here  as  any  suitor  before  the  committee  of  the  legislature  ought 
to  be  regarded,  and  yet  it  is  almost  impossible  to  forget  what 
the  Troy  and  Greenfield  Railroad  Company  was  in  time  past, 
when  it  had  an  active  existence  here  in  the  Commonwealth ; 
when  we  come  to  consider  whether  it  has  been  through  any 
condition  of  contrition  and  repentance  from  that  time  to  the 
present,  or  done  any  works  meet  for' repentance,  that  justifies  it 
in  coming  up  here  and  assuming  the  pathetic  and  suppliant 
attitude  before  this  committee  in  which  the  learned  gentleman 
presents  it ; because  it  is  a matter  of  familiar  history  that  this 
Troy  and  Greenfield  Railroad  Company,  all  the  time  that  it 
was  on  its  feet  and  going  about  here,  exercised  the  utmost 
powers  of  its  many  instrumentalities  in  deceiving  the  Com- 
monwealth ; and  that  when  the  time  came  when  the  act  of 


75 


1862  was  passed,  there  had  been  such  a load  of  obligations 
and  duties  assumed  and  violated,  that  it  could  not  go  any 
further.  It  undertook  to  build  this  road  under  the  charter 
granted  in  1848,  which  their  petition  set  forth  as  a request 
that  they  might  have  the  privilege  of  building  their  own  road 
with  their  own  money  (they  started  here  back  in  1848  with 
deceptive  words  of  that  kind),  which  was  to  be  located  and 
built  in  seven  years ; and  yet,  after  two  times  seven  years  had 
elapsed,  they  had  scarcely  begun  to  build  it. 

They  came  again,  in  1849,  for  a change  of  location ; and  in 
1850  for  a change  of  location ; and  in  1851  for  a State  loan, 
which  was  refused ; and  in  1852  for  some  other  things  not 
very  important;  and  in  1853  for  a State  loan,  which  was 
refused ; and  in  1854  they  succeeded  in  convincing  the  legis- 
lature that  a loan  should  be  made  for  the  purpose  of  building 
the  tunnel — not  the  road,  but  the  tunnel — and  that  was  upon 
the  express  condition  that  the  railroad  company  should  sub- 
scribe $600,000  in  bona  fide  subscriptions  in  stock,  and  that 
twenty  per  cent,  of  it  should  be  actually  paid  in  in  cash. 
Then,  in  1855,  they  came  again.  The  towns  were  authorized 
to  subscribe,  and  towns  up  in  that  mountain  region  of  the 
State  that  had  no  money  to  spare  were  authorized  to  subscribe, 
and  they  were  induced  into  making  subscriptions , and  there 
was  an  act  also,  I believe,  which  allowed  the  city  of  Boston 
to  subscribe ; and  then  they  assumed  the  obligations  of  this 
grant  of  the  loan  upon  condition  that  they  would  raise 
$600,000  worth  of  stock,  in  good  faith. 

They  came  here  again  in  1856,  and  asked  the  State  to  take 
$150,000  of  that  stock  ; that  the  State  should  pay  out  $150,000 
to  enable  them  to  get  the  loan  out  of  the  State  treasury,  or 
subscribe  the  amount  which  they  were  seeking  to  get. 

In  1856  there  was  an  act  for  a change  of  location.  In  1857 
an  act  was  passed  ostensibly  for  modifying  the  obligations  of 
the  corporation,  but  really  for  the  benefit  of  the  contractors, 
which  the  governor  of  that  year  vetoed;  and  in  1859  they 
were  here  again  for  a modification  of  the  terms  of  the  loan, 
and  up  to  that  time  this  corporation  that  was  doing  all  its 
duties,  and  leading  such  a virtuous  and  exemplary  life,  had 


76 


succeeded  in  raising  in  cash  $66,058.28  (it  is  not  quite  certain 
where  the  twenty-eight  cents  came  from,)  out  of  the  $600,000 
they  had  undertaken  to  raise,  and  have  twenty  per  cent,  thereof 
in  cash  before  they  could  get  any  money  from  the  State  treas- 
ury ; and  they  had  succeeded  through  some  adroit  manipula- 
tion of  their  accounts,  and  by  other  means  which  created  a 
great  deal  of  talk  in  those  days,  in  getting  from  the  treasury 
a .considerable  amount  of  money  to  which  they  had  not  en- 
titled themselves,  and  by  this  time,  as  the  best  authority  upon 
the  subject  says  (Mr.  Bird,  who  then  knew  more  about  the  sub- 
ject than  anybody  else,  because  he  took  more  pains  to  inquire 
into  it  than  anybody  else),  their  scheme  and  methods  were 
made  plain.  It  stirred  his  righteous  soul,  so  that  he  said 
that  even  good  Republican  towns  sent  Democratic  representa- 
tives to  pull  through  their  plans.  That  appears  by  printed 
papers  which  were  distributed  to  the  legislature  at  that  time. 
Mr.  Bird  charged  that  Mr.  Haupt,  the  contractor,  had  pocketed 
the  corporation,  and  there  has  been  no  evidence  that  he  has 
ever  disgorged  it ; and  it  may  be  assumed  to  be  in  his  capa- 
cious pocket  still ; and  he  has  wandered  away  from  Massachu- 
setts, and  the  fact  of  his  being  beyond  its  jurisdiction  may 
account  in  some  degree  for  the  manner  in  which  this  petition 
is  prosecuted.  They  have  found  it  necessary  to  call  dis- 
tinguished gentlemen  from  other  States  to  come  here  and 
assist  Brother  Gooch  in  presenting  this  extremely  simple 
matter,  as  they  now  term  it,  before  this  committee. 

In  1860  they  brought  the  State  down  to  an  agreement  that 
it  should  give  up  the  requirement  of  the  $600,000  subscription 
of  stock,  and  that  they  should  give  them  a part  of  the  scrip 
to  build  the  road,  without  requiring  that  subscription.  And 
so  they  got  on  till  1861,  when  this  corporation  not  only  de- 
faults, but  entirely  breaks  down  and  becomes  utterly  demoral- 
ized in  the  opinion  of  everybody  who  took  pains  to  look  into 
the  matter.  It  failed,  and  could  go  no  further,  for  the  appa- 
rent reason,  Mr.  Chairman,  as  we  find  in  the  examination 
of  the  public  papers  of  the  time,  that  they  had  got  up  there 
an  honest  and  resolute  engineer,  who  thought  that  engineering 
meant  engineering  and  not  contrivance,  and  because  there  sat 


77 


in  the  executive  chair  of  the  State  a man  whose  instincts 
were  so  unerring,  his  integrity  so  unflinching,  that  he  stood 
firm  and  resisted  all  the  efforts  of  the  committees  of  the  coun- 
cil to  get  over  the  condition  of  things  as  they  then  stood. 

Well,  they  had  a hearing,  and  they  got  a unanimous  report, 
which  was  indeed  quite  a remarkable  thing,  when  we  con- 
sider how  it  was  done.  They  had  as  witnesses  before  that 
committee  Colonel  Lincoln,  who  was  the  engineer  who  seems 
to  have  been  wheedled  by  Mr.  Haupt  in  some  way  into  ap- 
proving some  very  bad  transactions.  They  had  Mr.  Steven- 
son, the  other  engineer,  who  had  been  particeps  criminis  in 
that,  for  the  thing  had  become  so  bad  that  we  are  tempted  to 
designate  it  in  that  way.  They  had  Mr.  Haupt’s  engineer, 
Mr.  Haupt’s  partner,  Mr.  Haupt’s  bridge-builder,  Mr.  Haupt’s 
sub-contractor,  and  Mr.  Haupt  himself ; and  on  the  other  side 
was  Mr.  Whitwell.  With  this  sort  of  testimony  before  them 
the  committee  made  a unanimous  report,  but  still  Governor 
Andrew  sat  there  like  a rock  and  resisted  them  ; then  they 
had  a hearing  before  the  whole  council,  and  all  the  best,  en- 
gineering talent  available  was  brought  before  them,  and  they 
all  said  that  Whitwell  was  right.  Then  they  went  to  the 
legislature. 

In  those  days,  that  some  of  us  remember  and  others  of  us 
have  heard  about,  when  nobody  could  tell  how  committees  of 
the  legislature  were  influenced — days  which  happily  have 
passed  by,  I believe — they  succeeded  in  getting  a committee  of 
the  legislature  to  agree  with  them  unanimously,  and  give  them 
a bill,  which  did  not  pass.  At  that  time  these  things  had  be- 
come so  palpable  that  the  attention  of  the  legislature  was 
brought  to  them  in  many  ways,  and  Mr.  Bird  wrote  and  pub- 
lished two  most  trenchant  pamphlets ; so  that  the  committee 
and  the  legislature  of  186^2  said,  “ This  kind  of  thing  must 
be  stopped.  This  building  of  railroad  embankments  with  a 
slope  of  one  to  one,  which  are  sure  to  come  down  in  the  next 
rain  storm ; this  trestling  up  forty  feet  in  the  air  where  the 
law  of  good  railroading  required  a bridge ; this  building  a 
bridge  which  Mr.  Vose,  the  engineer  who  carefully  examined 
it,  although  planned  by  Mr.  Haupt,  who  had  written  a work 


78 


on  bridges,  and  though  built  by  Mr.  Child,  one  of  the  best 
bridge-builders  in  the  country,  said  was  the  worst  structure 
for  a bridge  he  had  ever  looked  upon,  must  come  to  an  end.” 

The  road  was  built  in  sections  and  they  were  entitled  to  get 
money  in  sections  from  the  treasury  of  the  State,  as  sections 
were  substantially  built.  That  was  in  1861.  That  was  the 
reason  why  the  legislature  of  1862  refused  to  go  any  further, 
but  said  that  the  time  had  come  when  the  State,  to  protect 
itself,  must  take  this  thing  into  its  own  hands.  They  had  not 
then 

“ Stept  in  so  far,  that  should  they  wade  no  more, 

Returning  were  as  tedious  as  go  o’er.” 

Had  they  submitted  to  pocket  the  loss  then,  the  State  would 
have  been  millions  of  dollars  better  off. 

Then  came  this  act  of  1862,  which  furnishes  to  our  friends 
on  the  other  side  such  comfort,  such  consolation,  and  such 
hope.  In  this  they  find,  or  claim  to  find,  a grant  of  a right 
to  redeem.  Why,  of  course  there  was  a right  to  redeem. 
There  is  no  controversy  about  that.  Under  all  the  mortgages 
that  have  been  made,  the  right  of  redemption  existed,  and  all 
the  legislature  in  the  act  of  1862  said  was  that  the  right  of 
redemption  existing  should  extend  so  much  further  into  the 
future.  That  was  all.  You  can  read  this  no  other  way.  It 
is  not  giving  the  right,  but  it  is  extending  the  right  of  redemp- 
tion. 

“The  Troy  and  Greenfield  Railroad  Company  is  hereby 
authorized  to  surrender  to  the  State  the  property  now  mort- 
gaged (nothing  else) ; but  the  right  of  redemption  shall  not 
be  barred  till  ten  years  have  elapsed  after  said  road  and  tunnel 
are  completed,  and  the  same  open  for  use.”  That  is  not  giving 
a right  of  redemption.  It  recognizes  the  right  of  redemption 
under  the  mortgages,  and  says  that  it  should  be  available  for 
ten  years  after  the  tunnel  had  been  completed. 

So  that  we  come  back,  as  I had  the  honor  of  saying  this 
morning,  to  the  consideration  of  these  mortgages,  not  to  any 
contract  which  is  in  the  act  of  1862,  but  to  the  mortgage 
rights.  Our  friends  here  do  not  abandon  their  mortgage  rights, 


79 


their  rights,  as  mortgagors,  to  come  in  and  claim  whatever  that 
will  give  them ; and  then  they  say  as,  of  course,  they  have  a 
right  to  argue,  if  they  choose,  that  it  was  provided  in  this  act 
of  1862  that  the  expenditures  for  building  the  tunnel  should 
not  exceed  $2,000,000.  The  appropriation  of  money  was  limited 
to  that  sum.  That  shows  what  utter  childishness  and  ignorance, 
what  utter  incompetency  or  inexperience  there  was  then  with 
regard  to  building  a work  of  this  kind. 

Because  you  do  not  believe,  and  will  not  believe,  Mr.  Chair- 
man and  Gentlemen,  that  when  the  legislature  of  1862  said 
that  they  meant  to  say  what  the  gentlemen  here  claim,  that  we 
will  never  charge  you  but  $2,000,000 ; we  will  spend  the  rest, 
if  it  costs  fifty  millions ; you  may  redeem  on  a basis  of  two 
millions.  But  they  only  meant  to  say  that,  according  to  the 
best  advice  they  had  upon  the  subject  then,  it  was  only  ex- 
pected to  cost  $2,000,000,  and  so  they  draw  the  line  of  appro- 
priation there,  as  they  must  somewhere. 

Now,  my  distinguished  friend  from  New  York,  and  earlier 
from  Massachusetts,  which  is  better,  argues  to  you  as  if  this 
was  a new  condition  of  things,  when  a party  finds  himself  with 
a claim  against  the  State  and  has  no  power  to  sue  the  State. 
Why,  that  has  been  the  relation  of  parties  to  the  Common- 
wealth from  time  immemorial  till  two  years  ago.  Nobody  had 
a right  to  sue  the  Commonwealth  till  a provision  was  madetwo 
years  ago  that  they  might  go  into  the  Superior  Court,  when 
their  claim  was  for  money  due  from  the  State,  and  have  the 
suit  heard  by  two  justices  of  that  court.  But  this  is  the  con- 
dition of  things  that  has  always  existed  in  Massachusetts,  and 
I suppose  in  other  States.  There  has  been  no  right  to  sue  the 
sovereign  without  the  express  consent  of  the  sovereign.  I do 
not  think  that  I was  discovering  any  new  principle  when  I 
interposed  a demurrer,  as  I did  to  the  bill  in  equity,  which  the 
Troy  and  Greenfield  Railroad  Company  brought  against  the 
State,  and  which  the  court  had  no  difficulty  in  sustaining.  It 
was  not,  as  is  suggested  here,  because  I was  unwilling  to  go 
to  trial  upon  the  general  merits  of  the  case,  but  because  it 
was  my  duty,  as  the  learned  gentleman  must  admit,  to  take 
advantage  of  whatever  legal  defence  there  was  to  the  bill. 


80 


Mr.  Muzzey,  of  Cambridge : — With  the  permission  of  the 
chairman,  I would  like  to  ask  the  attorney  general  a ques- 
tion with  a view  of  shortening  this  hearing.  It  is  this: — 
Whether  there  is  anything  in  this  case  which  is  so  peculiar  as 
to  shut  out  a party,  if  the  Commonwealth  could  be  sued  as 
other  citizens?  Is  there  anything  here  that  supposes  the 
Commonwealth  to  be  capable  of  suing  and  being  sued  ? Is 
there  anything  here  which  would  not  permit  this  railroad  to 
put  the  Commonwealth  into  court,  except  the  sovereign  power 
of  exemption  from  suit? 

Mr.  Marston  : — Why,  of  course,  sir,  if  you  assume  that 
the  Commonwealth  is  subject  to  be  sued,  and  take  the  next  fact 
that  these  gentlemen  come  here  and  make  a claim,  then  there 
is  nothing  in  the  way  of  bringing  suit.  I do  not  wish  to  in- 
fringe upon  the  time  of  the  committee.  I will  endeavor  to  be 
as  brief  as  I can.  I know  I may  discuss  some  things  which 
may  be  unnecessary  for  me  to  discuss,  but  they  have  been  dis- 
cussed on  the  other  side.  I state  this  proposition,  that  when 
a party  comes  here  and  asks  for  permission  to  sue  the  Com- 
monwealth on  a matter  of  this  kind,  he  assumes  that  the  Com- 
monwealth, represented  here  by  its  legislature,  is  unwilling  to  ' 
execute  justice,  and  I ask  them  to  say,  before  they  call  upon 
you  to  give  the  right  to  sue  in  the  courts,  why  they  can  not 
present  their  case  here,  and  if  they  show  that  they  have  en- 
titled themselves  to  redeem,  have  you  enact  justice ; for  it  is 
the  right,  and  it  is  the  prerogative  of  this  State,  when  it  is 
told  that  it  owes  money  to  any  of  its  subjects,  individuals,  or 
corporations,  to  do  justice  without  being  drawn  into  the  courts 
as  a suitor,  and  compelled  to  defend  itself  there,  just  as  in 
smaller  matters  men  have  come  up  here,  year  by  year,  ever 
since  the  adoption  of  the  constitution,  and  presented  their 
claims  against  the  State  to  its  committee  on  claims,  which  has 
heard  them  and  has  reported  resolves  to  compensate  them,  and 
so  justice  has  been  done  by  the  Commonwealth.  Men  have 
not  come  up  here  year  by  year  and  said  to  the  committee  on 
claims,  we  have  a claim  ; please  enact  a law  that  we  may  sue 
the  Commonwealth  in  the  courts  and  try  it  out  there.  I sub- 
mit that  it  is  an  imputation  upon  the  prerogative,  the  sover- 


81 


eignty,  the  justice  of  Massachusetts  for  a corporation  to  come 
here  and  assume  to  say : “We  can  not  settle  with  you  because 
you  are  unjust;  we  can  not  obtain  our  rights  here,  dealing 
directly  with  you,  because  you  deny  us  the  rights,  and  there- 
fore grant  us  the  power  to  sue  you  in  the  courts.” 

To  that  we  answer,  state  and  specify  your  claim,  and  let  us 
see  if  we  can  agree  about  it.  A year  ago  a committee,  less  in 
numbers  than  your  committee,  Mr.  Chairman,  but  for  that 
reason,  because  smaller,  a little  more  active  in  its  inquiries, 
asked  Mr.  Gooch,  not  with  tears  in  their  eyes,  but  with  an 
earnest  desire  to  do  justice  in  their  hearts,  to  tell  them  what 
it  was  that  he  wanted. 

Mr.  Gooch: — Pardon  me,  Mr.  Chairman,  I was  asked 
about  six  times  during  that  hearing  if  I wanted  to  redeem 
the  property  for  $2,000,000,  and  my  reply  to  it  was  : “We 
want  to  redeem  any  property  for  exactly  the  sum  which  the 
Supreme  Court  of  Massachusetts  shall  adjudicate  that  we 
should  pay  for  redemption.”  There  was  no  suggestion  or 
proposition  made  to  me,  or  any  other  terms  of  the  statement 
that  I now  remember. 

Mr.  Marston  : — Now,  my  Brother  Gooch  must  be  mista- 
ken about  that,  because  Mr.  Knowlton  did  not  ask  him  so 
simple  a question,  as  if  he  was  willing  to  have  a bill  to  re- 
deem upon  the  very  terms  on  which  he  claims  they  have  the 
right  to  redeem. 

Mr.  Gooch  : — I was  asked  to  state  what  we  would  pay  for 
redemption.  You  remember  the  answer  that  I gave.  We 
claim  the  right  to  redeem  on  the  payment  of  $2,000,000  and 
interest.  The  attorney  general,  when  he  meets  us  in  court, 
will  probably  claim  that  we  are  to  pay  the  $18,000,000  which 
the  Commonwealth  has  expended,  and  the  province  of  the 
court  will  be  to  adjudicate  the  payment  of  such  a sum  as,  in 
their  judgment,  the  contract  calls  for.  That  was  my  an- 
swer. 

Mr.  Marston  : — All  this  is  quite  immaterial,  Mr.  Chair- 
man and  Gentlemen,  to  the  main  question  that  we  are  con- 
sidering here.  What  I was  endeavoring  to  make  plain  and 
enforce  was,  that  till  this  Troy  and  Greenfield  Railroad  Com- 
pany (if  there  is  any  such  thing  anywhere,  except  upon 


82 


paper)  has  stated  its  claim  here,  and  has  seen  whether  you 
are  willing  to  enact  justice  on  the  spot,  it  has  no  right  to 
claim  that  it  should  have  an  opportunity  of  dragging  the 
Commonwealth  through  the  uncertain  result  of  a lawsuit, 
whatever  that  may  be,  and  where  its  humble  representative, 
whoever  he  may  he,  is  to  meet  such  a number  of  representa- 
tives of  the  American  Bar  Association  as  find  it  convenient 
to  assemble  from  all  the  States  in  the  Union. 

Now,  then,  Massachusetts  is  not  to  be  dragged  into  a court 
of  justice  till  it  appears  that  the  State  is  unwilling  to  execute 
justice  with  her  own  hands  ; till  we  find  what  should  be  done 
and  refuse  to  do  it ; and  then  it  is  time  enough  to  say  that 
the  State  is  in  a condition  where  nothing  but  the  quiet  admin- 
istration of  the  courts  of  justice  will  bring  about  what  is  de- 
sired. 

One  word  more,  Mr.  Chairman,  upon  the  claim  which  has 
been  made  here  that,  in  the  passage  of  the  act  of  1862,  it  was 
understood  that  the  Troy  and  Greenfield  Railroad  Company 
agreed  not  to  protest,  but  agreed  to  be  silent  as  to  the  manner 
in  which  the  State  carried  on  the  work  of  construction.  That 
may  be  true,  by  implication,  as  to  what  was  then  distinctly  in 
the  minds  of  the  parties  to  the  transaction,  but  can  not  be  true 
in  respect  to  things  which  had  not  then  been  thought  of  by 
either  of  them.  What  they  agreed  in  respect  to  silence  rela- 
ting to  what  was  then  comprehended  and  understood  by  both 
sides,  is  utterly  immaterial.  As  to  things  which  arose  after- 
wards, and  which  had  been  unforeseen  when  they  entered  upon 
a different  and  enlarged  work,  about  which  there  could  have 
been  no  previous  understanding,  they  were  called  upon  not 
to  be  silent  but  to  protest,  and  if  they  did  not  object  or  protest, 
they  are  chargeable  with  the  fact  and  the  result.  They  have 
lain  by  all  these  years,  with  a full  knowledge  of  all  the  trans- 
actions and  expenditures  by  the  State,  and  they  have  not  ob- 
jected. Whether  we  shall  be  able  in  any  time  of  need  in  the 
near  or  distant  future,  to  invoke  any  reported  decision  of  any 
court  of  justice  in  support  of  that  proposition,  I do  not  know, 
but  if  not,  I should  be  inclined  to  say  to  His  Honor,  the  Chief 
Justice,  what  Mr.  Choate  said  once  to  Judge  Sprague,  that 


83 


he  would  search  diligently  for  an  authority  to  support  a prop- 
osition of  law  which  he  enunciated,  but  he  hoped  he  should 
not  succeed,  because  he  should  be  very  sorry  to  rob  the  court 
of  the  honor  of  being  the  first  to  establish  so  just  a rule. 
If  it  is  necessary  to  formulate  a rule  of  law  which  has  not 
been  stated  and  adjudicated,  and  which  is  according  to  the 
principles  of  justice,  I have  no  doubt  the  court  will  assert  it. 
There  is  no  need  of  going  there.  We  are  here.  This  is 
the  great  and  General  court,  more  potential  than  the  Supreme 
Judicial  Court,  to  execute  all  necessary  acts  for  the  admin- 
istration of  justice  between  the  Commonwealth  and  any  ag- 
grieved party.  Our  friends  come  here  with  all  this  ample 
and  sufficient,  and  perhaps  superabundant  support  of  their 
petition,  and  say,  and  I desire  to  emphasize  that  in  closing,  it 
is  the  right  to  sue  the  Commonwealth  that  they  want  and 
nothing  else. 

Now,  then,  in  the  name  of  the  Commonwealth,  I protest 
against  carrying  the  majesty  of  the  State  into  the  courts,  until 
it  has  appeared  that  there  is  a necessity  for  resorting  to  those 
tribunals.  The  petitioners  should  come  here,  as  humble  men 
have  come  to  the  legislature  heretofore,  to  ask  for  justice  and 
have  justice  executed,  not  to  have  a doorway  opened  into  a 
court,  where  they  might  seek  and  perhaps  find  justice,  but 
having  justice  executed  and  delivered  on  the  spot. 

So  this  Troy  and  Greenfield  Railroad  Company  should  come 
here  and  ask  for  nothing  more  than  to  state  the  case,  and 
disclose  and  try  its  claim,  to  show,  first,  if  it  can,  as  a basis, 
that  it  has  performed  the  obligations  of  its  bond,  and  kept  the 
conditions  of  its  mortgages,  and  trust  to  the  justice  of  a Mas- 
sachusetts legislature  to  do  all  that  is  needful. 

I do  not  think  there  is  any  occasion  that  I should  say  a word 
to  you  in  support  of  the  integrity  and  honor  of  this  State. 
The  honor  of  the  State  is  best  preserved  when  it  maintains 
its  own  imperial  dignity  by  executing  its  justice  directly  with 
its  own  willing  and  unsullied  hands. 


ARGUMENT  OF  HON.  JOHN  C.  BULLITT. 


Mr.  Chairman  and  Gentlemen  of  the  Committee : 

The  question  which  was  asked  by  one  of  the  Committee 
seems  to  me  to  embody  the  whole  subject  before  you.  If  I 
understood  that  question  it  was  this : — Is  there  anything  so 
peculiar  in  this  case  as  to  put  the  Commonwealth  in  a different 
position  from  that  of  any  other  case  of  a claim  against  the 
Commonwealth  ? When  you  consider  what  it  is  we  ask,  I 
think  you  will  see  that  if  there  is  any  peculiarity  in  this 
case,  it  is  the  strength  of  the  right  to  ask  you  to  pass  a bill 
granting  the  relief  for  which  we  pray.  The  reply  of  the 
learned  Attorney-General  to  that  question  was  substantially 
this,  that  there  was  nothing  in  this  claim  which  entitled  us  to 
ask  you  to  authorize  us  to  go  into  court  different  from  any  other 
case,  and  as  I understood  him,  he  also  pressed  upon  your  con- 
sideration that  there  was  no  reason  in  anything  which  had  oc- 
curred that  should  lead  you  to  consider  this  case  as  haying 
any  peculiarity ; and  I understood  him  further  to  take  the 
position,  that  the  Commonwealth  was  not  in  the  habit  of  being 
dragged  into  court. 

I am  not,  of  course,  very  familiar  with  the  practice  in  Mas- 
sachusetts, but  my  investigation  of  this  subject  has  led  me  to 
see  one  thing,  and  that  is  that  your  State  from  the  year  1804 
has  recognized  its  liability  to  be  brought  into  court  as  a defend- 
ant in  cases  of  mortgages  of  real  estate.  The  act  of  1804  pro- 
vides the  exact  method  in  which  this  shall  be  done.  This,  I 
take  it,  although  I am  not  sufficiently  familiar  with  the  history 
of  the  State  to  understand  out  of  what  circumstances  this 
legislation  grew,  but  I take  it  for  granted  that  the  State  must 
have  been  in  the  habit  of  loaning  money  upon  mortgages  or 
selling  land  and  taking  mortgages  for  the  purchase-money. 
Now,  your  act  of  1804  most  carefully  guards  the  rights  of  re- 
demption, and  gives  the  mortgagor  the  right  to  go  into  the 
Supreme  Court  of  the  county  of  Suffolk  and  file  a bill,  and 
there  have  the  question  determined  as  to  how  much  is  due 
upon  the  mortgage. 


(85) 


86 


Attorney- General  Marston  : — That  is  only  where  the 
parties  have  disagreed,  and  that  is  exactly  the  proposition  I 
assert  here.  When  we  have  got  to  the  point  where  we  disa- 
gree, it  would  be  time  enough  to  talk  of  going  into  court. 

Mr.  Bullitt  : — Well,  we  do  disagree  ; there  can  be  no 
doubt  of  that  proposition  certainly,  whatever  else  there  is 
doubt  about. 

I wish  now  to  call  your  attention  to  that  which  seems  to  me 
to  settle  the  contract  under  which  we  have  to  ask  you  for  the 
relief  which  we  are  seeking.  By  the  Act  of  1862,  and  you  will 
pardon  me  for  calling  your  attention  to  it  for  a moment,  in  the 
second  section  it  is  provided  : — “ The  Troy  and  Greenfield 
Railroad  Company  is  hereby  authorized  to  surrender  to  the 
State  the  property  now  mortgaged  ; but  the  right  of  redemp- 
tion shall  not  be  barred  until  ten  years  have  elapsed  after  said 
road  and  tunnel  are  completed,  and  the  same  opened  for  use.” 
What  did  that  section  mean  ? What  was  understood  by  the 
persons  who  composed  the  then  members  of  the  Legislature  ? 
What  was  understood  by  the  persons  who  were  to  surrender 
that  property  ? Can  you  suppose  for  a moment  that  if 
the  persons  interested  in  the  Troy  and  Greenfield  Railroad 
Company  had  been  told  then  that  the  law  would  stand  as  it  is 
now  understood  to  be,  that  is,  that  they  had  no  right  to  redeem 
unless  at  the  pleasure  and  good-will  of  the  State,  that  the  State 
could  refuse  to  allow  the  redemption,  and  that  when  the  State 
should  be  brought  into  court  for  the  purpose  of  having  the 
right  just  given  by  this  statute  asserted,  that  they  would  be 
met  by  the  assertion  that  they  had  no  right  to  go  into  the 
Supreme  Court  of  the  State  to  assert  that  right ; do  you  sup- 
pose for  a moment  that  the  company  would  have  accepted  that 
act  and  surrendered  their  property  ? 

The  learned  Attorney-General  has  referred  to  this  company 
as  being  a myth,  existing  only  on  paper,  as  probably  having 
no  existence.  Gentlemen,  the  people  who  have  brought  me 
into  this  case,  citizens  of  Pennsylvania,  believing  that  when 
they  came  into  the  State  of  Massachusetts  for  the  purpose  of 
investing  their  money  on  the  faith  of  the  State,  they  were 
investing  it  upon  a faith  on  which  all  men  could  rest  and 
could  go  to  sleep  in  quietness,  these  men  know  that  the  com- 


87 


pany  has  an  existence  to  the  extent  of  hundreds  of  thousands 
of  dollars.  I recollect  that  at  the  time  the  work  was  being 
prosecuted  on  the  Hoosac  Tunnel,  a gentleman  who  was  about 
loaning  money  to  the  contractors  mentioned  to  me  the  fact 
that  he  was  about  to  make  the  loan,  a very  considerable  sum 
of  money.  I said  to  him,  “ Have  you  any  security  ?”  “ I 

expect,”  he  said,  “ to  be  paid  when  the  State  of  Massachusetts 
pays  the  contractors.”  I said  to  him,  and  I well  recollect  it  now, 
“ You  can  rely  upon  what  the  State  of  Massachusetts  has  agreed 
to  do.”  Gentlemen,  that  sentiment  has  pervaded  our  people, 
and  I believe  it  has  pervaded  the  people  of  the  United  States. 
Over  and  over  again  you  have  been  pointed  to  as  a State,  and 
one  of  the  few  States,  that  during  the  war,  when  gold  had 
gone  up  one  hundred  or  two  hundred  per  cent.,  instead  of 
doing  as  was  done  in  many  other  places,  and  taking  advan- 
tage of  this  rise  in  the  price  of  gold,  or  rather  this  rise  in  the 
price  of  money,  whichever  you  choose  to  call  it,  always  paid 
your  interest,  as  I understand  it,  in  gold.  All  men  who  have 
dealt  with  the  State  of  Massachusetts,  and  I may  go  further 
than  that  and  say  with  the  city  of  Boston,  have  felt  that  they 
were  dealing  with  men  who,  as  individuals  or  as  communities, 
or  as  a State,  when  they  pledged  their  faith,  meant  to  keep 
that  faith,  and  the  men  who  accepted  that  act  from  the  State 
of  Massachusetts,  promising  that  right  of  redemption  for  ten 
years,  believed  not  only  that  they  were  going  to  have  the 
right  to  redeem  accorded  to  them,  but  that  if  there  was  a dis- 
pute as  to  that  right,  they  would  have  the  right  as  other  citi- 
zens of  enforcing  that  claim  as  mortgagors.  And  why  did 
they  believe  so  ? You  turn  to  your  Revised  Statutes,  and  these 
words  are  to  be  found  under  the  head  of  ‘ ‘ Mortgages  to  the 
Commonwealth  :” — “ If  the  Treasurer  and  the  person  applying 
to  redeem  the  mortgage  disagree  as  to  the  sum  due,  the  person 
applying  may  bring  a suit  in  equity  against  the  Commonwealth, 
for  the  redemption,,  in  the  Supreme  Judicial  Court  for  the 
county  of  Suffolk.” 

The  men  who  surrendered  that  property,  the  Legislature  of 
Massachusetts  itself,  your  highest  judicial  or  official  authori- 
ties (I  will  not  say  judicial  authorities,  but  your  highest  offi- 
cial authorities),  in  that  day  believed,  that  under  that  act  the 


88 


Troy  and  Greenfield  Railroad  Company  would  have  the  right, 
in  case  of  a difference,  to  apply  to  the  Supreme  Court  of 
Massachusetts  to  settle  the  dispute.  Now,  it  turns  out,  to  the 
surprise,  I suppose,  of  every  man  who  knew  anything  about  it, 
that  when  the  case  is  argued  in  the  Supreme  Court  on  the  bill 
which  was  filed  by  the  Troy  and  Greenfield  Railroad  Com- 
pany, your  Supreme  Court  has  decided  that  there  was  no 
jurisdiction. 

What,  then,  do  we  ask  ? We  ask  that  you  shall  place  us 
just  where  we  supposed  we  were  when  that  act  was  passed.  We 
ask  you  to  place  us  -just  where  every  other  mortgagor  of  real 
estate  in  the  State  of  Massachusetts  stands.  We  ask  you  to 
go  back  and  correct  that  which  now  appears  to  have  been  a 
mistake  on  the  part  of  all  the  parties  to  this  contract.  And 
does  not  that  answer  the  question  ? There  is  no  reason  why 
you  should  not  give  us  this  remedy  against  the  Commonwealth. 
None  can  be  given.  Then  when  you  turn  to  your  own  stat- 
utes, and  when  you  see  what  the  Act  of  1862  is  and  what  its 
provisions  are,  and  when  you  find  that  was  made  under  the 
then  existing  or  supposed  existing  state  of  the  law,  does  not 
that  appeal  in  the  very  strongest  manner  to  your  legislative 
judgment  as  to  the  right  we  have  to  ask  you  for  this  relief,  and 
as  to  your  duty  to  confer  it  upon  us  ? And  why  should 
it  not  be  done  ? Do  you  feel  that  as  a committee  of  the  Legis- 
lature you  are  prepared  to  go  into  all  the  questions  which 
would  be  raised  in  reference  to  the  redemption  of  this  prop- 
erty ? It  is  said  by  the  learned  Attorney-General,  and  may  be 
said  with  a great  deal  of  force,  that  there  may  be  expenditures 
upon  that  property  which  properly  are  chargeable  to  us.  I 
do  not  mean  to  say  that  that  is  so,  but  there  is  a principle  in 
the  law  called  the  doctrine  of  equitable  estoppel.  The  doc- 
trine of  equitable  estoppel  is  simply  this,  that  if  I see  a man 
enter  my  property  without  right,  and  make  heavy  expenditures 
upon  it,  or  if  I see  him  going  on  making  heavy  expenditures, 
I may  be  debarred  from  charging  him  with  that.  Of  course 
these  questions  are  to  be  tried  according  to  the  purest  princi- 
ples of  equity.  But  then  it  requires  that  it  shall  be  weighed 
with  a very  nice  and  skillful  and  careful  eye  to  the  rights  of 
all  the  parties,  and  after  hearing  the  testimony  which  may  be 


89 


given  upon  both  sides.  Are  you  prepared  to  do  this  ? I take 
it  that  the  province  of  a legislature  is  hardly  to  sit  and  hear 
a case  of  that  character.  Therefore,  independent  of  the 
questions  which  I have  been  submitting  to  you  in  reference  to 
our  rights  growing  out  of  this  act,  and  the  supposed  state  of 
the  law  at  that  time,  it  seems  to  me  that  this  is  eminently  a 
case  to  be  referred  to  the  court  to  determine  the  rights  of  the 
parties,  and  recognizing,  as  we  do,  the  fact  that  questions  of 
this  kind  may  grow  out  of  it,  that  these  questions  do  require 
the  nice  and  critical  adjustment  of  which  I have  spoken,  we 
ask  you  to  do  what  ? Simply  to  give  us  the  privilege  of  hav- 
ing these  questions  determined  by  the  highest  court  in  your 
State,  and  one  upon  which  I am  sure  that  you  and  every  one 
in  your  State  can  rely  with  the  utmost  confidence  as  to  the 
justice  and  propriety  and  legal  wisdom  of  the  decision  at 
which  it  may  arrive. 

I do  not  propose,  gentlemen,  to  go  into  the  questions  which 
have  been  dilated  upon  by  the  learned  Attorney-General  in 
reference  to  the  character  of  this  legislation  or  its  history.  I 
know  nothing  about  it.  I am  told  that  one  of  the  gentlemen 
to  whom  he  referred,  Mr.  Lincoln,  was  a man  of  high  charac- 
ter and  repute. 

Attorney-General  Marston: — He  was,  sir,  a man  of 
the  highest  character  and  repute,  and  so  simple  in  his  charac- 
ter that  an  adroit  man  misled  him  before  he  was  aware  of  it. 

Mr.  Bullitt: — I know  nothing  of  that,  nor  anything  of 
that  which  was  said  by  the  learned  Attorney-General  with 
reference  to  the  legislation  of  that  day.  I have  never  been  a 
member  of  any  legislative  body,  but  I have  known  a great 
deal  of  some  of  the  legislatures  which  have  become  a byword 
in  this  country,  and  I have  known  this  that,  in  many  cases 
where  legislatures  have  been  the  most  traduced,  they  have 
been  the  freest  from  censure.  It  is  a very  easy  thing,  and  a 
very  natural  thing,  when  it  suits  our  purpose,  to  cast  slurs  on 
those  who  have  done  that  which  may  be  unacceptable  to  us, 
and  I have  always  felt  that  that  wholesale  denunciation  of 
men  and  of  legislative  bodies  was  unfair  and  unjust. 

But  whether  the  Troy  and  Greenfield  Railroad  Company 
has  been  guilty  of  sins  in  the  past ; whether  it  has  done  that 


90 


which  is  attributed  to  it  or  not,  is  not,  gentlemen,  for  you  to 
determine.  The  question  for  you  to  determine,  gentlemen,  is 
this  : Is  there,  in  the  circumstances  that  have  been  presented 
to  you,  that  which  appeals  to  your  sense  of  legislative  duty, 
and  requires  you  to  give  us  the  remedy  which  we  ask  in  this 
case  ? It  is  admitted  that  we  have  a right ; it  is  admitted  that 
it  is  the  duty  of  the  State  to  recognize  the  right  in  some  form. 
In  what  form  will  you  give  it  to  us  ? Are  you  prepared  to 
enter  into  these  minute  questions  of  which  I have  spoken  ? 
Are  you  prepared  to  say  what  are  the  rights  of  the  State,  or 
what  our  rights  are  ? Can  you  do  better  than  to  refer  this 
question,  as  I said  before,  to  your  highest  judicial  tribunal, 
and  is  not  that  your  duty  ? Have  you  the  right  as  members 
of  the  Legislature  of  Massachusetts,  and  members  of  this 
Commonwealth,  to  leave  this  question  to  float  upon  the  future  ? 

This  Hoosac  Tunnel,  in  my  judgment,  however  much  it  may 
have  been  abused,  is  a matter  of  immense  importance  to  the 
State  of  Massachusetts.  Any  man  who  will  go  back  to  the 
history  of  the  city  of  New  York  will  see  that  the  Erie  Canal 
was  the  beginning  of  its  prosperity.  The  State  works  which 
brought  the  Western  trade  into  Pennsylvania  were  what  built 
up  the  city  of  Philadelphia.  You  of  the  city  of  Boston  are 
now  struggling  in  competition  with  other  Atlantic  seaboard 
cities  for  the  Western  trade.  It  is  through  that  Hoosac  Tun- 
nel that  your  principal  trade  is  to  come,  and  day  by  day  and 
year  by  year  it  is  becoming  more  and  more  important ; and  I 
submit  to  you  that  the  sooner  this  question  is  settled,  the  wiser 
it  will  be  for  all  parties.  The  learned  Attorney-General  has 
said,  “ Why  don’t  we  present  our  claims  ?”  We  are  prepared 
to  do  so.  We  are  not  going  to  ask  anything  unreasonable,  and 
we  do  not  seek  anything  unreasonable.  If  the  State  in  any 
form  will  meet  us,  there  is  no  difficulty  about  that.  I am  pre- 
pared to  say  to-morrow  that  the  company  will  meet  any  officer 
of  the  State  who  is  prepared  to  adjust  this  business ; but  that 
must  come  in  some  other  form.  What  we  are  asking  you  now 
to  do,  is  to  consider  the  question  whether  you  have  not  the 
right,  and  whether  it  is  not  your  duty,  to  give  us  the  relief 
which  we  ask  in  this  bill. 


91 


Mr.  Chairman  and  Gentlemen : 

In  conclusion,  I will  only  say  that  we  ask  to  redeem  our 
property,  not  relying  exclusively,  as  the  argument  of  the 
Attorney-General  seems  to  assume,  on  the  Act  of  1862,  but 
relying  on  the  terms  of  our  several  mortgages,  all  of  which 
were  made  before  the  Act  of  1862  was  contemplated,  and  also 
upon  the  provisions  contained  in  that  act.  This  act,  by  its  ac- 
ceptance by  the  company,  and  the  surrender  of  its  property 
as  therein  provided,  constitutes  the  last  and  final  contract  be- 
tween the  parties. 

We  ask  for  a remedy  to  enforce  our  rights  under  an  exist- 
ing contract.  That  we  have  these  rights  the  Attorney- Gene- 
ral does  not  deny  or  question.  The  only  question  is  as  to  the 
remedy. 

The  questions  to  be  decided  are,  as  stated  in  our  petition, 
purely  legal  questions,  which  can  only  be  properly  determined 
in  a court  of  justice. 

The  Commonwealth  of  Massachusetts,  in  common  with 
every  other  civilized  government,  acknowledges  the  duty  of 
furnishing  a remedy  by  process  of  law  to  its  citizens  or  sub- 
jects for  the  determination  of  all  questions  growing  out  of  con- 
tracts to  which  it  is  itself  a party. 

We  only  ask  what  Massachusetts  has  agreed  to  give  us,  and 
what  she  cannot  withhold  without  making  the  Troy  and 
Greenfield  Railroad  Company  an  exception  to  the  rules  appli- 
cable to  all  her  other  citizens  or  subjects  who  have  claims 
against  her  founded  on  contract. 

I shall  not  take  up  your  time  any  longer.  It  does  not  seem 
to  me  that  there  can  be  any  question  or  that  there  ought  to  be 
any  question  about  it.  We  ask  nothing  more  than  that  which 
we  supposed  we  had.  I do  not  see  how  the  Commonwealth  of 
Massachusetts  can  give  us  anything  less  than  we  ask,  which  is 
the  simple  privilege  of  having  our  rights  determined  by  your 
highest  judicial  tribunal. 


Supreme  Judicial  Court  for  the  Common- 
wealth, Suffolk. 


IN  EQUITY. 


The  Troy  and  Greenfield  Railroad  Company 


vs. 

The  Commonwealth  of  Massachusetts. 

POINTS  OF  ARGUMENT  FOR  COMPLAINANTS. 

The  Troy  and  Greenfield  Railroad  Company  was  in- 
corporated by  an  act  of  the  Legislature  of  Massachu- 
setts, approved  loth  May,  1848,  with  authority  to  build 
a railroad  in  the  State  of  Massachusetts  to  connect  with 
a railroad  to  be  constructed  from  the  city  of  Troy,  in  the 
State  of  New  York.  To  enable  the  company  to  con- 
struct the  Hoosac  Tunnel,  the  Legislature  of  Massa- 
chusetts, by  an  act  approved  5th  April,  1854,  authorized 
a loan  of  the  State  credit  to  the  amount  of  $2,000,000; 
and  to  secure  the  payment,  a mortgage  was  executed 
and  delivered  by  the  corporation  on  the  28th  July,  1855. 

By  an  act  of  April  4th,  i860,  the  terms  of  the  loan 
were  modified,  and  the  Troy  and  Greenfield  Railroad 
Company  was  required  to  execute  a further  bond  and 
mortgage,  and  was  authorized  to  purchase  the  property 
and  franchises  of  the  Southern  Vermont  Railroad  Com- 
pany, a corporation  created  by  the  State  of  Vermont. 
In  pursuance  of  this  authority,  the  Troy  and  Greenfield 


2 


Railroad  Company  purchased  the  railroad  of  the  South- 
ern Vermont  Railroad  Company  on  the  2 1st  April,  i860, 
and  on  the  same  day  executed  a mortgage  thereon  to 
the  Commonwealth  of  Massachusetts.  Other  mortgages 
upon  its  property  for  the  more  effectual  securing  the  re- 
payment of  the  loan  were  executed  by  the  corporation 
to  the  Commonwealth  on  the  6th  July,  i860,  and  5th 
April,  1862;  and  upon  the  28th  April,  1862,  an  act  was 
passed,  entitled  “An  act  providing  for  the  more  speedy 
completion  of  the  Troy  and  Greenfield  Railroad  and 
Hoosac  Tunnel,”  whereby  provision  was  made  for  the 
surrender  of  the  railroad,  tunnel,  franchises,  and  other 
property  to  the  Commonwealth,  it  being  specially  stipu- 
lated in  the  second  section  of  the  act  that  “ the  right  of 
redemption  shall  not  be  barred  until  ten  years  shall  have 
elapsed  after  said  road  and  tunnel  are  completed  and  the 
same  open  for  use.”* 

Under  the  conditions  and  engagements  of  this  act,  the 
Commonwealth  of  Massachusetts  obtained  a surrender 
of  possession  from  the  Troy  and  Greenfield  Railroad 
Company,  and  completed  the  railroad  and  tunnel,  and 
opened  the  same  for  use  about  the  30th  June,  1876. 

In  December,  1878,  the  Troy  and  Greenfield  Railroad 
Company  applied  to  the  Treasurer  of  the  Commonwealth 
of  Massachusetts  for  an  account  of  the  indebtedness  due 
to  the  Commonwealth  under  the  several  mortgages  men- 

* Section  2.  The  Troy  and  Greenfield  Railroad  Company  is  hereby 
authorized  to  surrender  to  the  State  the  property  now  mortgaged,  but  the 
right  of  redemption  shall  not  be  barred  until  ten  years  shall  have  elapsed 
after  said  road  and  tunnel  are  completed,  and  the  same  open  for  use. 
The  said  commissioners  shall  immediately,  in  the  name  of  the  Common- 
wealth, take  complete  possession  under  the  mortgages  to  the  Common- 
wealth, given  by  the  Troy  and  Greenfield  Railroad  Company,  of  all 
property,  rights,  and  interests  intended  to  be  conveyed  by  said  mortgages, 
or  either  of  them,  and  then  shall,  without  unnecessary  delay,  cause  the 
said  railroad  to  be  completed  and  put  into  running  order,  and  supplied 
with  suitable  depots,  turntables,  and  other  usual  and  necessary  appliances 
for  the  reception  of  freight  and  passenger  cars,  from  the  eastern  terminus 
of  the  Troy  and  Greenfield  Railroad  to  the  Hoosac  Tunnel. 


3 


tioned,  and  offered  to  pay  the  amount  that  would  be 
found  due.  The  treasurer  replied  that  he  did  not  feel 
authorized  by  law  to  state  an  account  and  fix  the  amount 
to  be  paid  in  redemption  of  the  mortgages  held  by  the 
Commonwealth,  and  thereupon  this  bill  was  filed  praying 
for  an  account,  and  tendering  repayment  of  the  amount 
that  should  be  found  to  be  due.  A demurrer  having  been 
interposed  on  behalf  of  the  Commonwealth,  the  ques- 
tion is,  whether  this  court  has  jurisdiction. 

It  is,  of  course,  conceded  that  suit  can  not  be  main- 
tained against  a sovereign  State  unless  permission  has 
been  given  by  statute.  But,  in  coming  to  the  considera- 
tion of  the  acts  of  the  legislature  bearing  upon  the 
question,  it  is  proper  to  keep  in  mind  that  this  is  simply  a 
bill  for  an  account,  and  for  redemption  of  property,  belong- 
ing to  the  complainants  and  held  by  the  Commonwealth, 
as  security  for  an  indebtedness,  repayment  of  which  is 
tendered  in  the  bill.  If  the  amount  is  not  disputed,  then 
the  Commonwealth  would  be  in  the  position  of  retaining 
possession  of  what  did  not  belong  to  it,  simply  by  the  right 
of  might.  If  the  amount  is  disputed,  then  a question  of 
account  arises,  which  is  exclusively  a judicial  question, 
and  peculiarly  so,  if  “ the  principles  upon  which  the 
account  shall  be  made”  are  in  dispute  or  doubt.  The 
property  belongs  to  the  complainants  as  the  equitable 
owners,  and  is  only  held  in  pledge  or  mortgage,  and 
part  of  it  is  in  another  State. 

It  will  be  seen  that  this  case  has  nothing  in  common 
with  that  of  Briggs  vs.  The  Light-Boats,  1 1 Allen,  where 
the  property  in  question  was  used  by  the  Government 
for  public  purposes.  Even  in  the  case  of  a municipal 
corporation,  the  property  held  for  public  uses,  such  as 
school  or  court-houses,  water-works  or  highways,  could 
not  be  taken  in  execution  any  more  than  the  light-ships 
or  vessels  of  war,  or  parks  of  artillery  of  the  National 
Government.  This  is,  however,  simply  a bill  to  redeem 


4 


private  property  which  does  not  differ,  for  the  purposes 
of  this  case,  from  a factory  or  farm ; and  jurisdiction  of  a 
bill  to  settle  the  accounts  can  be  entertained  and  exer- 
cised by  the  court,  without  in  any  manner  interfering  with 
the  prerogatives  or  functions  of  Government.  It  is 
true  that  such  jurisdiction  must  have  been  conferred  by 
legislation ; but  the  statutes  to  which  reference  will  be 
directed  are  broad  enough  in  their  language  and  scope 
to  give  it ; and  the  real  question  is  whether  they  are  to 
be  construed  in  a narrow  and  technical  spirit,  or  liberally 
and  with  a desire  “to  advance  the  remedy.” 

The  question  is  sometimes  discussed  as  if  it  were 
derogatory  to  the  dignity  of  the  sovereign  to  be  sued  ; 
but  even  in  England,  where  it  is  the  theory  of  the  law 
that  the  king  is  the  fountain  of  justice,  and,  that  “ to  know 
of  any  injury  and  to  redress  it  are  inseparable  in  the  royal 
breast,”  so  that  it  might  have  been  plausibly  contended 
that  no  remedy  by  law  was  necessary  or  even  possible, 
it  was  recognized  centuries  ago  that  his  true  dignity 
would  be  best  maintained  by  providing  a means  whereby 
the  subject  could  assert  and  establish  his  rights.  As  a 
matter  of  consistency,  it  was  well  enough  to  invent  the 
courtly  fiction  that  “ injuries  to  the  rights  of  property  can 
scarcely  be  committed  by  the  crown  without  the  inter- 
vention of  its  officers,  for  whom  the  law  in  matters  of 
right  entertains  no  respect  or  delicacy,  but  furnishes 
various  methods  of  detecting  the  errors  or  misconduct 
of  those  agents  by  whom  the  king  has  been  deceived 
and  induced  to  do  a temporary  injustice ; ” but  still,  as 
Blackstone  says,  “Whenever  it  happens  by  misinformation 
or  inadvertence  the  crown  hath  been  induced  to  invade 
the  private  rights  of  any  of  its  subjects,  though  no  action 
will  lie  against  the  sovereign  (for  who  shall  command 
the  king?)  yet,  the  law  hath  furnished  the  subject  with 
a decent  and  respectful  mode  of  removing  that  invasion, 
by  informing  the  king  of  the  true  state  of  the  matter  in 
dispute  ; ” and  he  cites  the  authorities  to  the  effect  that 


5 


when  the  judgment  of  quod  manus  amoveantur  was  ren- 
dered, “by  such  judgment  the  crown  is  instantly  out  of  pos- 
session!' 

It  is  true  that  a petition  of  right  is  framed  and  treated  as 
an  appeal  to  grace,  but  eminent  judges  have  maintained 
that  it  could  not  lawfully  be  denied.  In  the  case  of  Ryers 
vs.  Duke  of  Wellington,  9 Beav.,  600,  Lord  Langdale 
said:  “lam  far  from  thinking  that  it  is  competent  to 
the  king,  or  rather  to  his  responsible  advisers,  to  refuse 
capriciously  to  put  into  a due  course  of  investigation  any 
proper  question  raised  on  a petition  of  right.  , The  form 
of  the  application  being,  as  it  is  said,  to  the  grace  and 
favor  of  the  king,  affords  no  foundation  for  any  such 
suggestion.” 

Chief  Justice  Jervis  said  (2  El.  & Bl.,  856)  that  “in  the 
case  of  a petition  of  right  it  had  been  the  practice  of  late 
years  at  the  Home  Office,  under  a great  authority,  to 
endorse  ‘ Let  right  be  done,’  as  a matter  of  course,  with- 
out even  referring  the  case  to  the  attorney-general,  and 
that  in  his  judgment  this  use  of  the  prerogative  by  the 
subject  as  his  protection  against  abuse  could  not  be 
abridged.” 

Whatever  doubts  may  have  existed  before  have  been 
removed  by  the  late  statute  of  23  & 24  Viet.,  ch.  34, 
and  some  of  the  remarks  of  Blackburn,  J.,  in  the  recent 
case  of  Thomas  vs.  The  Queen,  L.  R.,  10  Q.  B.,  31,  in 
which  it  was  held  that  a petition  of  right  will  lie  for  a 
breach  of  contract  resulting  in  unliquidated  damages, 
are  instructive  as  showing  how  the  general  question  is 
now  regarded  in  that  country. 

“We  must  observe  as  to  this  last  argument,  that  the 
moral  effect  of  such  judgment,  though  it  could  not  be 
enforced,  must  at  all  times  have  been  great ; and  without 
adopting  the  whole  of  the  polite  fiction  of  the  law,  which, 
as  stated  by  Blackstone,  2 Com.,  page  225,  presumes 
that  to  know  of  any  injury  and  to  redress  it  are  insepa- 
rable in  the  royal  breast,  we  may  say  that  at  all  times 


6 


the  refusal  of  the  crown  to  pay  its  just  debts  was  much 
more  likely  to  be  based  on  a sincere  or  pretended  denial 
on  the  part  of  the  crown’s  advisers  of  the  justice  of  the 
debts,  than  on  a barefaced  avowal  of  an  intention  to  avail 
themselves  of  the  power  to  refrain  from  doing  right. 
* * * * * * In  Comyns’  Digest, 

Prerogative,  D.,  78,  it  is  said  that  petition  lies  if  the  king 
does  not  pay  a debt,  wages,  &c.;  citing  Lord  Somers’ Ar- 
gument, 85 ; and  Chief  Baron  Comyns  expresses  no 
doubt  as  to  the  soundness  of  the  doctrine  thus  cited  by 
him.  It  appears  in  Macbeth  vs.  Haldeman,  1 T.  R.,  at 
page  178,  that  Lord  Thurlow  and  Buller,  J.  (both  obiter 
it  is  true),  expressed  an  opinion  that  a petition  of  right 
lay  against  the  crown  on  a contract;  and  a similar  opinion 
seems  to  have  been  expressed  by  the  Barons  of  the  Ex- 
chequer in  Oldham  vs.  Lords  of  the  Treasury,  6 Sim., 
220,  and  in  Baron  de  Bode’s  Case,  8 Q.  B.,  274,  in  which 
the  point  was  raised,  though  not  decided.  Lord  Den- 
man declares  i an  unconquerable  repugnance  to  the  sug- 
gestion that  the  door  ought  to  be  closed  against  all  re- 
dress and  remedy a doctrine  much  resembling  what 
Lord  Somers  calls  Lord  Holt’s  ‘ popular  opinion,’  that 
if  there  be  a right  there  must  be  a remedy.” 

In  accordance  with  these  views,  the  Court  of  Claims 
has  been  established  by  Congress  to  hear  and  determine 
all  claims  against  the  Government  of  the  United  States; 
and  if  the  Legislature  of  Massachusetts  has  not  provided 
a remedy  through  the  courts  for  the  adjudication  of  the 
questions  raised  by  this  bill,  it  has  fallen  short  of  its 
manifest  duty.  They  are  purely  judicial  questions,  and 
it  is  declared  by  the  fundamental  law  that  “ in  the  gov- 
ernment of  this  Commonwealth,  the  legislative  depart- 
ment shall  never  exercise  the  executive  and  judicial 
powers,  or  either  of  them  ; ” and  that  “ every  subject  of 
this  Commonwealth  ought  to  find  a certain  remedy  by 
having  recourse  to  the  laws  for  all  injuries  or  wrongs 


7 

which  he  may  receive  in  his  person,  property,  or  char- 
acter.” 

It  is  submitted  that  such  remedy  has  been  given  by 
the  General  Statutes  relating  to  the  subject.  It  being 
the  practice  of  the  Commonwealth  at  that  time  to  make 
loans  upon  real  estate,  the  act  of  1804  was  passed,*  mak- 
ing provision  for  the  settlement  of  controversies  between 
the  mortgagor  and  the  Commonwealth.  This  act  was 
substantiaily  re-enacted  in  the  Revised  Statutes,  chapter 
107,  and  General  Statutes,  140;  though  the  words  “real 
estate”  are  omitted  in  the  latter.f 

* Chapter  103,  1804. 

Section  i . Be  it  enacted  by  the  Senate  and  House  of  Representatives  in 
General  Court  assembled,  and  by  the  authority  of  the  same.  That  whenever 
any  mortgagor  who  shall  have  mortgaged  any  real  estate  to  the  Common- 
wealth, his  executors,  administrators,  heirs,  or  assigns  shall  pay  into  the 
treasury  the  full  sum  due  on  such  mortgage,  the  treasurer  may,  and  it  shall 
be  his  duty  to  sign  and  seal  a discharge  of  such  mortgage  and  a release 
and  quit-claim  to  the  estate  therein  mentioned  to  be  granted,  and  to 
acknowledge  the  same  before  a justice  of  the  peace,  which  deed,  recorded 
in  the  registry  of  deeds  for  the  county  where  such  estate  is  situate,  shall 
effectually  discharge  such  mortgage  to  all  intents  and  purposes.  * * 

Sec.  2.  And  be  it  further  enacted,  That  whenever  there  shall  be  a dis- 
agreement between  the  treasurer  for  the  time  being  and  the  person  apply- 
ing to  redeem  any  real  estate  mortgaged  to  the  Commonwealth  as  to  the 
sum  equitably  due  on'  such  mortgage,  the  person  so  applying  and  having 
a right  to  redeem  such  estate,  may  file  a bill  in  equity  for  the  redemption 
thereof,  in  the  Supreme  Judicial  Court,  in  the  county  of  Suffolk,  and  the 
same  court  shall  cause  an  attested  copy  of  such  petition  with  a summons 
thereon  to  appear  at  the  next  term  of  said  court  in  said  county,  to  be  served 
fourteen  days  before  the  commencement  thereof  on  the  treasurer,  who 
is  hereby  authorized  in  behalf  of  the  Commonwealth  to  appear  in  said 
court  and  answer  to  such  petition,  and  the  said  court  within  said  county 
shall  proceed  to  hear  the  parties,  and  shall  determine  and  adjudge  what 
sum  is- justly  due  on  said  mortgage  to  the  Commonwealth,  and  the  treasu- 
rer shall  be  empowered  and  it  shall  be  his  duty  to  accept  the  sum 
adjudged  by  said  court  to  be  due  on  said  mortgage,  and  upon  receiving 
the  same,  to  discharge  and  release  such  mortgage  in  manner  prescribed 
in  the  first  section  of  this  act. 

f Chapter  140,  General  Statutes. 

Section  45.  When  a mortgage  is  made  or  assigned  to  the  Common* 
wealth,  the  treasurer  may  demand  and  receive  the  money  due,  and  upon 
payment  shall  make  and  acknowledge  a discharge  of  the  mortgage,  &c. 


8 


Meanwhile  the  Commonwealth  had  undertaken  to 
assist  her  railroads  by  loans  of  money  or  credit,  and  the 
Revised  and  General  Statutes  provided  a complete  sys- 
tem of  legislation  in  respect  to  the  mortgages  given  to 
secure  such  loans,  as  to  the  manner  and  effect  of  their 
record  and  the  like ; and  the  one  hundred  and  twenty- 
eighth  section  of  the  sixty-third  chapter  of  the  General 
Statutes,  which  re-enacts,  in  effect,  the  act  of  1857,  gives 
to  the  Supreme  Judicial  Court,  and  each  of  the  justices 
thereof,  jurisdiction  in  certain  specified  cases,  “ and  of  all 
questions  arising  out  of  railroad  mortgages 

Now,  if  sections  45-48  of  chapter  140  of  the  General 
Statutes  be  held  to  apply  to  real  estate  only,  though  there 
is  no  more  significant  proof  of  a change  of  intention  than 
a change  in  old  and  familiar  phraseology,  this  case  would 
fall  within  the  law,  so  restricted.  This  mortgage  con- 
veys the  real  estate  of  the  complainant  specifically  and 
by  name;f  and  as  the  only  object  of  the  bill  is  to  liqui- 

* Section  128.  “ The  Supreme  Judicial  Court,  and  each  of  the  justices 
thereof,  shall  have  full  equity  jurisdiction,  according  to  the  usage  and  prac- 
tice of  courts  of  equity,  of  all  cases  arising  under  the  three  preceding  sec- 
tions, and  of  all  questions  arising  out  of  railroad  mortgages,  and  may,  in  a 
summary  manner,  remove  any  trustee  under  a railroad  mortgage,  whether 
such  trustee  is  in  possession  of  the  road  or  not,  and  appoint  a new  trustee 
in  his  stead,  whether  such  trustee  is  elected  by  the  bondholders  or  cred- 
itors, as  provided  in  said  section.” 

j-  Now,  therefore,  the  said  Troy  and  Greenfield  Railroad  Company,  a 
corporation  established  by  law,  in  consideration  of  two  millions  of  dollars, 
paid- or  to  be  paid  by  the  Commonwealth  of  Massachusetts,  according  to 
the  provisions  of  the  several  acts  relating  thereto,  does  hereby  give,  grant, 
bargain,  sell,  convey,  and  confirm  unto  the  said  Commonwealth  of  Massa- 
chusetts, the  entire  railroad  of  said  corporation,  and  all  its  franchises  and 
property  whatsoever,  and  doth  hereby  ratify  and  confirm  all  bonds,  mort- 
gages, and  other  conveyances  and  assurances  heretofore  executed  and 
delivered  by  said  corporation  to  said  Commonwealth.  The  intent  and 
meaning  hereof  being  to  convey  and  confirm  as  aforesaid  to  said  Com- 
monwealth, all  lands,  buildings,  and  tene?nents,  and  all  interests  and  ease- 
ments therein  that  said  corporation  now  has,  or  hereafter  may  acquire 
within  the  limits  of  the  location  made  and  filed  as  aforesaid,  and  to  con- 
firm all  former  conveyances,  bonds,  and  mortgages  heretofore  made,  as 
aforesaid. 


9 


date  the  amount  due,  it  comes  within  the  letter  of  the 
statute,  as  the  indebtedness  is  on  the  real  estate,  and  a 
decree  for  the  redemption  of  that  much  will  answer  all 
purposes,  as  it  can  not  be  assumed  that  the  Common- 
wealth will  not  “ remove  its  hands”  from  all  the  proper- 
ty when  paid  the  debt  to  secure  payment  of  which  it 
holds  on  to  the  possession.  If  a mortgage  should  be 
taken  on  a mill,  jurisdiction  would  not  be  ousted  by  the 
fact  that  it  covered  fixtures  and  tools,  commonly  re- 
garded as  personal  property. 

But  the  words  of  the  one  hundred  and  twenty-eighth 
section  of  the  sixty-third  chapter  fully  cover  the  case. 
It  may  be  that  railroad  mortgages  were  not  thought  of 
when  the  act  of  1804  was  passed,  and  that  the  act  of 
1857,  standing  by  itself,  would  more  naturally  be  held  to 
refer  to  mortgages  other  than  those  to  the  Common- 
wealth ; but  it  is  submitted  that  the  General  Statutes  are 
to  be  construed  as  if  passed  uno  flatu  and  as  a whole. 
The  one  hundred  and  twenty-eighth  section  of  the  sixty- 
third  chapter  interprets  the  sections  of  chapter  140,  and 
refers  to  the  system  there  established.  The  jurisdiction 
conferred  is  to  be  exercised  as  directed  in  chapter  140, 
but  if  the  clause  in  italics  was  not  intended  to  give 
authority  to  the  court  in  cases  of  mortgages  to  the  Com- 
monwealth, it  has  no  meaning.  If  stricken  out,  the  grant 
of  power  would  cover  every  “ question  arising  out  of 
railroad  mortgages  ” — to  trustees.  In  i860,  railroad 
mortgages  to  the  Commonwealth  were  common  enough. 
They  were  much  more  likely  to  give  rise  to  dispute  than 
any  others ; and  the  legislature  was  establishing  a com- 
plete code  for  the  regulation  of  all  kinds  of  mortgages 
to  the  Commonwealth,  including  those  upon  railroads. 
In  every  other  respect  adequate  provision  is  made,  and 
it  is  not  likely  that  so  clear  and  plain  a casus  omissus 
would  occur.  So  far  from  it  being  reasonable  to  con- 
strue each  chapter  by  reference  to  the  early  statute  from 


IO 


which  it  is  taken,  for  the  purpose  of  limiting  and  restrict- 
ing the  jurisdiction  of  the  court,  it  is  much  more  natural 
to  treat  the  entire  body  of  statutes  as  a complete  code, 
intended  to  provide  for  every  requirement  at  the  time  of 
its  adoption.  If  so,  there  is  no  presumption  that  it  was 
the  purpose  to  withhold  the  means  of  redress.  On  the 
contrary,  the  legal  presumption  in  such  a case  is  that  the 
legislature  intended  to  give  jurisdiction  to  the  courts  in 
all  cases  in  which  it  was  proper  that  it  should  be  given, 
if  the  language  will  bear  it. 

Sections  120  to  13 1 are  placed  under  the  head  of  bonds 
and  mortgages,  and  while  sections  125, 126,  and  127  relate 
to  mortgages  to  trustees  for  the  benefit  of  bondholders, 
the  one  hundred  and  twenty-eighth  section  gives  juris- 
diction of  all  cases  arising  under  the  three  preceding 
sections,  and  of  all  questions  arising  out  of  railroad 
mortgages;  while  sections  129,  130,  and  13 1 go  on  to 
regulate  the  manner  in  which  mortgages  to  the  Com- 
monwealth should  be  made,  what  property  should  be 
bound  by  them,  and  how  they  are  to  be  recorded.  The 
burden  is  therefore  upon  him  who  contends  that  the 
clause  “all  questions  arising  out  of  railroad  mortgages  ” 
does  not  include  those  mortgages  to  the  Commonwealth, 
which  must  at  the  time  have  been  in  the  mind  of  the 
draughtsman,  inasmuch  as  they  were  the  subject-matter 
of  the  three  sections  immediately  succeeding.  The  lan- 
guage of  Lord  Westbury  in  the  case  of  The  Duke  of 
Newcastle  vs.  Morris,  L.  R.,  4 E.  & I.  App.,  661-674,  is 
directly  in  point.  By  the  sixty-ninth  section  of  the  act 
of  1861,  all  debtors  were  made  liable  to  the  bankrupt 
laws  : nothing  was  said  in  the  act  to  reserve  to  debtors 
who  had  their  privilege  from  Parliament,  their  privilege 
from  personal  arrest ; and  it  was  held  that  the  statute 
included  all  debtors  whatever.  Lord  Westbury  says : — 


“ My  Lords,  let  us  first  consider  what  is  the  onus  that  lies  on  the  appel- 
lant. The  onus  is  this,  that  he  must  first  prove  to  your  Lordships  con- 


II 


clusively  that  when  we  find  in  the  act  of  1861  the  positive  enactment  that 
all  debtors  whether  traders  or  not  shall  be  subject  to  the  provisions  of  this 
act,’  the  words  ‘ all  debtors,’  do  not  include  debtors  having  privilege  of 
Parliament.  The  words  are  positive : they  are  without  any  exception  ex- 
pressed. He  must  show,  therefore,  by  argument  as  conclusive  as  the 
positive  words  of  the  enactment  itself,  that  such  an  exception  is  necessarily 
implied.” 

This  view  is  confirmed  by  the  language  of  the  act 
of  1862,  which,  as  a legislative  contract,  should  be 
construed  in  the  sense  in  which  the  promisee  had 
the  right  to  understand  it.  The  second  section  stipulates 
that  the  “ right  of  redemption  shall  not  be  barred  until 
ten  years  shall  have  elapsed  after  said  road  and  tunnel 
are  completed  and  the  same  open  for  use.”  It  uses 
technical  language,  which  must  receive  a technical 
meaning.  The  phrase  right  of  redemption  imports,  ex 
vi  termini , a remedy  by  judicial  proceedings;  and  as 
there  can  be  no  right  where  there  is  no  remedy,  this 
act  of  1862  is  a legislative  interpretation  of  the  seve- 
ral chapters  of  the  General  Statutes  above  cited.  A 
right  which  can  not  be  asserted  or  established,  in  invitum , 
is  no  right  at  all.  A redemption- of  mortgage  property 
can  only  be  made  by  the  ascertainment  and  payment  of 
the  debt  arfd  a compulsory  assertion  of  the  right  of  pos- 
session. To  suggest  “ special  legislation  ” as  the  remedy 
contemplated  is  worse  than  mockery.  The  question  in- 
volved is  not  legislative,  but  judicial.  It  is  one  which 
the  Legislature  of  Massachusetts  has  no  constitutional 
right  to  deal  with.  It  is  one  which  it  is  part  of  the 
jurisdiction  of  a court  of  chancery  to  entertain  and  deter- 
mine. It  was  a right  that  was  given,  and  not  a permis- 
sion to  sue  for  favor  from  the  members  of  a legislature. 
Such  being  its  character,  nothing  is  presumed  against  the 
Commonwealth  in  holding  that  jurisdiction  to  entertain 
a bill  to  settle  this  account  is  given  in  these  statutes.  The 
Commonwealth  has  engaged  in  the  business  of  lending 
money  upon  the  security  of  private  property  ; and  having 


12 


embarked  in  trade  is,  as  to  this  business,  to  be  treated  as 
a trader,  or  the  suit  is  to  be  regarded  not  as  an  action 
against  the  State,  but  merely  as  a proceeding  in  rem. 

Story  says : — 

It  is  a sound  principle,  that  when  a government  becomes  a partner  in 
a trading  company,  it  divests  itself,  so  far  as  concerns  the  transactions  of 
that  company,  of  its  sovereign  character,  and  takes  that  of  a private  citizen. 
Instead  of  communicating  to  the  company'its  privileges  and  prerogatives, 
it  descends  to  a level  with  those  with  whom  it  associates  itself,  and  takes 
the  character  which  belongs  to  its  associates,  and  to  the  business  which  is 
transacted.  Thus,  many  States  in  the  Union,  which  have  an  interest  in 
banks,  are  not  suable  even  in  their  courts.  A State  which  establishes  a 
bank,  and  becomes  a stockholder  in  it,  and  gives  it  a capacity  to  sue  and 
be  sued,  strips  itself  of  its  sovereign  character,  so  far  as  respects  the  trans- 
actions of  the  bank,  and  waives  all  the  privileges  of  that  character. 

As  a member  of  a corporation,  a government  never  exercises  its  sover- 
eignty. It  acts  merely  as  a corporator,  and  exercises  no  other  powers  in 
the  management  of  the  affairs  of  the  corporation,  than  are  expressly  given 
by  the  incorporating  act. 

The  United  States  held  shares  in  the  old  Bank  of  the  United  States ; 
but  the  privileges  of  the  Government  were  not  imparted  by  that  circum- 
stance to  the  bank. 

The  United  States  were  not  a party  to  -suits  brought  by  or  against  the 
bank,  in  the  sense  of  the  Constitution.  So,  with  respect  to  the  present 
bank,  suits  brought  by  or  against  it  are  not  understood  to  be  brought  by  * 
or  against  the  United  States.  The  Government,  by  becomings  corporator 
lays  down  its  sovereignty  so  far  as  respects  the  transactions  of  the  corpo- 
ration ; and  exercises  no  power  or  privilege  which  is  not  derived  from  the 
charter.*  Story  on  the  Constitution,  section  1687,  page  521. 

And  so  if  a sovereign  shall  acquire  landed  estates  in 
England,  and  enter  into  any  transaction  respecting  them, 
as  a contract  of  sale  or  a mortgage,  it  seems  to  be  con- 
ceded that  a court  of  equity  might  compel  him  specifi- 
cally to  perform  his  contract.  Duke  of  Brunswick  vs. 
King  of  Hanover,  2 H.  L.  C.,  I,  23.  And  this  doctrine 
was  enforced  by  Mr.  Justice  Grier,  in  the  case  of  Elliott 
vs.  Van  Vorst,  3 Wallace,  Jr.,  299,  where  he  sustained  a 

*See  U.  S.  Bank  vs.  Planters’  Bank  of  Georgia,  9 Wheat.  R.,  907,  908. 
Also,  Davis  vs.  Gray,  16  Wallace,  203. 


r3 


foreclosure  by  the  Court  of  Chancery  of  New  Jersey,  of 
mortgage  property,  the  equity  of  redemption  of  which 
had  been  purchased  by  the  United  States  to  secure  pay- 
ment of  a debt ; in  the  course  of  his  opinion  he  said  : — 

“But  it  does  not  follow  that  when  the  Government  officers  purchase 
land  in  the  name  of  the  United  States  to  secure  a debt,  as  any  individual 
or  private  corporation  might  do,  that  it  thus  ousts  the  jurisdiction  of  the 
State  to  tax  it,  or  in  any  manner  affects  the  liens  or  rights  of  mortgagees 
in  such  lands.  In  the  mere  exercise  of  a corporate  right  the  Government 
of  the  United  States  can  not  claim  the  prerogatives  or  immunities  of  a 
sovereign.  She  can  not  compel  a mortgagee  to  the  hopeless  remedy  of  a 
petition  to  Congress  to  redeem.  The  courts  of  New  Jersey  can  not  thus 
be  ousted  of  their  jurisdiction  and  duty  to  assist  the  mortgagee  to  have 
his  mortgage  satisfied,  and  the  mortgaged  premises  sold  for  that  purpose. 
When  the  Government,  in  the  exercise  of  the  rights  and  functions  of  a 
civil  corporation,  purchases  lands  to  secure  a debt,  the  accident  of  its  sov- 
ereignty in  other  functions  can  not  be  set  up  to  destroy  or  affect  the  right 
of  persons  claiming  a title  or  lien  on  the  same  lands.  Thus,  when  the* 
Government  of  the  United  States  became  a partner  in  a trading  corpora- 
tion, such  as  the  United  States  Bank,  it  divested  itself,  so  far  as  concerned 
the  transactions  of  that  company,  of  its  sovereign  character,  and  took 
that  of  a citizen ; consequently,  its  property  and  interests  were  subject  to 
the  decrees  and  judgments  of  courts  equally  with  that  of  its  copartners. 
* * * *’*  * * * * 

It  may  be  said  there  is  no  precedent  in  this  country  for  precisely  such  a 
case  as  that  before  the  chancellor.  The  answer  to  this  may  properly  be, 

‘ It  is  time  there  was  one.’  ” 

So  it  has  been  ruled  that  if  a sovereign  assumes  the 
character  of  a trader,  and  sends  a vessel  belonging  to 
him  to  this  country  to  trade  here,  he  must  be  considered 
to  have  waived  any  privilege  which  might  otherwise 
attach  to  the  vessel  as  the  property  of  a sovereign.  The 
Charkieh,  L.  R.,  4 Adm.  and  Ecc.,  page  59.  In  the 
course  of  his  opinion,  Sir  Robert  Phillimore  said  (page 
9 7)-~ 

“ The  universally  acknowledged  exceptions  to  the  general  rule  of  the 
sovereign’s  immunity,  when  examined,  prove  the  truth  of  this  proposition. 
For  instance,  the  exemption  from  suit  is  admitted  not  to  apply  to  immov- 
able property.  One  reason  may  be,  that  the  owner  of  such  property  has 
so  incorporated  himself  into  the  jural  system  of  the  state  in  which  he 


14 


holds  such  property,  that  the  argument  of  general  inconvenience  to  states 
from  allowing  the  exemption  outweighs  the  argument  from  convenience 
on  which  the  exemption  in  other  matters  is  bottomed.  But  another  reason, 
surely,  is  that  which  seems  to  be  suggested  by  Jervis,  C.  J.,  in  Taylor  vs. 
Best,  14  C.  B.,  487,  522,  that  such  a suit  can  be  carried  on  without  the 
necessity  of  serving  process  upon  the  sovereign  or  of  interfering  in  any 
way  with  such  personal  property  as  may  be  requisite  for  the  due  discharge 
of  his  functions.  The  exemption  must  be  taken  away  for  one  of  three 
reasons,  either  those  which  I have  suggested,  or  a third,  that  the  acquisi- 
tion of  immovable  property  amounts  to  a waiver  of  privilege.  * * * 

Page  99.  I must  say,  that  if  ever  there  was  a case  in  which  the  alleged 
sovereign  (to  use  the  language  of  Bynkershoek)  was  ‘ strenue  mercatorem 
agenSj  or  in  which  Lord  Stowell  says  he  ought  to  ‘ traffic  on  the  com- 
mon principles  that  other  traders  traffic’  (1  Dods.,  at  page  339),  it  is  the 
present  case ; and  if  ever  a privileged  person  can  waive  his  privilege  by 
his  conduct,  the  privilege  has  been  waived#  in  this  case. 

“ It  was  not  denied,  and  could  not  be  denied  after  the  evidence,  that  the 
vessel  was  employed  for  the  ordinary  purposes  of  trading.  She  belongs 
to  what  may  be  called  a commercial  fleet.  I do  not  stop  to  consider  the 
point  of  her  carrying  the  mails,  for  that  was  practically  abandoned  by 
counsel.  She  enters  an  English  port,  and  is  treated  in  every  material 
respect  by  the  authorities  as  an  ordinary  merchantman,  with  the  full  con- 
sent of  her  master ; and  at  the  time  of  the  collision  she  is  chartered  to  a 
British  subject,  and  advertised  as  an  ordinary  commercial  vessel.  No 
principle  of  international  law,  and  no  decided  case,  and  no  dictum  of 
jurists  of  which  I am  aware,  has  gone  so  far  as  to  authorize  a sovereign 
prince  to  assume  the  character  of  a trader  when  it  is  for  his  benefit ; and 
when  he  incurs  an  obligation  to  a private  subject  to  throw  off,  if  I may  so 
speak,  his  disguise,  and  appear  as  a sovereign  claiming  for  his  own  benefit 
and  to  the  injury  of  a private  person,  for  the  first  time,  all  the  attributes  of 
his  character ; while  it  would  be  easy  to  accumulate  authorities  for  the  con- 
trary position.” 


If  the  General  Statutes  are  interpreted  in  the  light  of 
these  principles  and  authorities,  it  is  believed  that  the 
conclusion  must  be  reached  that  the  State  of  Massachu- 
setts intended,  when  taking  possession  of  the  railroad,  to 
surrender  its  sovereignty  so  far  as  to  allow  the  corpora- 
tion the  right  to  appeal  to  this  court,  and  there  assert 
and  establish  its  “ right  of  redemption.” 

SAM’L  DICKSON, 

For  Complainant. 


